Short Reads

No full judicial review of each document seized during dawn raid

No full judicial review of each document seized during dawn raid

No full judicial review of each document seized during dawn raid

06.02.2020 NL law

Companies should keep a careful record of which documents the Belgian Competition Authorities seize during a dawn raid. In the event of a dispute on whether certain documents were rightfully seized, the Belgian courts are not required to undertake a full review of each document.

According to a decision of the Belgian Supreme Court of 12 September 2019, the Court of Appeal’s judicial review of documents copied by the Belgian Competition authorities can be limited to ensuring compliance with the procedural rules, confirming sufficient motivation, and affirming that there is no prima facie incorrect appreciation of the documents.

During a dawn raid by the Belgian Competition Authorities, conducted under the previous Belgian Competition Act, the authorities entered the premises of a company with a mandate from the Competition Authorities but without a mandate from an independent judge. By decision of 12 September 2019, the Belgian Supreme Court has confirmed that under the old law (and under the European Convention on Human Rights) a dawn raid was possible without a prior mandate issued by an independent judge. It was sufficient that a legal review by such judge, to take place immediately following the raid, was possible. This has now changed; the new Belgian Competition Act explicitly provides that the Competition Authority can only proceed with a dawn raid on the basis of a mandate of an independent judge.

More interestingly, the Supreme Court shed light on the kind of review the Court of Appeal should undertake in respect of documents copied by the competition authority during the dawn raid in the event that the investigated party objects to the copying of particular documents. While the Supreme Court recognised that the Competition Act in Belgium grants full jurisdiction to the Court of Appeal, it nevertheless held that in light of its specific position in the enforcement of competition law, the role of the Court of Appeal is not similar to that of the Competition Authorities. As a result, the Court of Appeal is not obliged to undertake a full review of each seized document but can limit its review to examining whether the procedural rules have been abided by, whether the motivation of the Competition Authorities is sufficient, whether the facts have been correctly set and whether there is no manifest incorrect appraisal or an abuse of competence.

When confronted with dawn raids, companies should double-check that the Belgian Competition Authorities have a mandate from an independent judge, as is now required. In addition, it is advisable to keep track of the documents seized by the Belgian Competition Authorities, as well as the reasons for seizing them, so as to be well prepared in the event of a dispute.

 

This article was published in the Competition Newsletter of February 2020. Other articles in this newsletter:

 

 

Team

Related news

07.10.2021 NL law
Commission’s record fine for gun jumping upheld

Short Reads - Pre-closing covenants protecting the target’s value or commercial integrity pending merger clearance from the European Commission must be drafted carefully. The General Court confirmed the Commission’s record-breaking fines on Altice for violating the EU Merger Regulation’s notification and standstill obligations. According to the General Court, the mere possibility of exercising decisive influence over the target can result in a gun jumping breach.

Read more

07.10.2021 NL law
ACM walks the walk: first-ever vertical price coordination fine

Short Reads - The Dutch Competition Authority (“ACM”) has claimed a first victim in its vertical restraints battle. Samsung Electronics was fined nearly EUR 40 million for having meddled in the online resale prices for televisions at seven retailers. Compared to the European Commission’s fines on four consumer electronics producers for resale price maintenance (“RPM”), the ACM’s summary decision seems to refer to a ‘light’ version of RPM: systematic price coordination without any threats, sanctions or incentives for the retailers to stick to the price.

Read more

07.10.2021 NL law
Commission reveals first piece of antitrust sustainability puzzle

Short Reads - The European Commission has published a Policy Brief setting out its preliminary views on how to fit the European Green Deal’s sustainability goals into the EU competition rules. Companies keen to be green may be left in limbo by a looming clash with more far-reaching proposals from national competition authorities. More pieces of the antitrust sustainability puzzle will fall into place as soon as the ongoing review of the guidelines on horizontal cooperation is finalised.

Read more

07.10.2021 NL law
Court of Appeal provides guidance for further course of proceedings in prestressing steel litigation

Short Reads - On 27 July 2021, the Court of Appeal of Den Bosch issued an interim judgment in the Dutch prestressing steel litigation, ruling on three issues: (i) the obligation of claimant to furnish facts; (ii) the assignment of claims; and (iii) the liability of the parent companies. In short, the Court of Appeal allowed the claimant Deutsche Bahn another opportunity to supplement the facts needed to substantiate its claims in the next phase of the proceedings.

Read more

24.09.2021 EU law
Digital Law Up(to)date: (1) the download of a software with a permanent licence can constitute a “sale of goods”; (2) alert of the BEUC regarding the privacy policy of WhatsApp and its new term of use

Articles - In this blog, we briefly present two interesting news in the field of digital law: (1) a judgment of the CJEU considering that the download of a software with a permanent licence can constitute a “sale of goods”, and (2) an alert of the BEUC regarding the privacy policy of WhatsApp and its new terms of use.

Read more