{"id":1495,"date":"2019-04-10T21:59:10","date_gmt":"2019-04-10T21:59:10","guid":{"rendered":"http:\/\/eulawenforcement.com\/?p=1495"},"modified":"2019-05-11T09:34:28","modified_gmt":"2019-05-11T09:34:28","slug":"safe-raids-meaningful-judicial-review-of-dawn-raids-on-business-premises-draft","status":"publish","type":"post","link":"https:\/\/eulawenforcement.com\/?p=1495","title":{"rendered":"Safe-raids? Meaningful judicial review of dawn raids on business premises"},"content":{"rendered":"\n

By Annabel, C\u00e9dric & Jorge<\/i><\/span><\/p>\n\n\n\n

Dawn raids<\/a> are praised as effective investigative tools since they provide direct and clear access to information that would otherwise be safe-locked in companies\u2019 premises. They are seen as part of the \u201cgo-to tools\u201d for national competition authorities (\u201cNCAs\u201d) and the European Commission to gather evidence in their investigation. The increasing number<\/a> of cases and the frequent use of dawn raids, has led to various law firms developing their own \u201cdawn raid survival kits and apps<\/a>\u201d.<\/span><\/p>\n\n\n\n

\"\"<\/a><\/figure>\n\n\n\n

This high profile-status does not mean that it is a flawless mechanism. Last year, there have been several cases of disproportionate dawn raids: in Belgium<\/a>, the court held that dawn raids in the travel sector had been conducted illegally. The protection offered by the Belgian Constitution was considered wider than the protection under Article 8 of the European Convention on Human Rights. Meanwhile in the Netherlands<\/a>, there has been a case which focused primarily on the legitimacy of a dawn raid.<\/span><\/p>\n\n\n\n

Overall, it is of crucial importance that domestic legal orders provide for effective judicial review to control such intrusive powers. In cases where it is established that an inspection was argued not proportional or necessary, it is vital that the persons concerned must be able to obtain meaningful redress. The question arises as to whether this ex post judicial review of a (disproportionate) dawn raid is meaningful.<\/span><\/p>\n\n\n\n

This blog will begin by addressing the definition of \u2018meaningful\u2019, a brief evaluation of the dawn raid regulation at the EU and national levels, the assessment of the judicial review as a \u2018meaningful\u2019 measure, and final recommendations to improve judicial review in this regard.<\/span><\/p>\n\n\n\n

\u201cMeaningful\u201d?!<\/b><\/span><\/p>\n\n\n\n

For the purposes of this blog, \u2018meaningful\u2019 is defined as the degree of: \n
1.) sufficient judicial review as an adequate redress for firms affected by dawn raids (i.e. stopping the abuse and resorting to the previous situation); and\n
2.) orienting NCAs in the execution of their inspection powers (i.e. avoiding potential abuses during dawn raids).<\/span><\/p>\n\n\n\n

Are there any safeguards?<\/b><\/span><\/p>\n\n\n\n

From a comparative perspective, it is interesting to examine how European countries designed their dawn raid legislation. The following table provides the dawn raid procedures of the Commission and 9 Member States along with their prior safeguards (the countries were selected based on the language proficiency of the authors):<\/span><\/p>\n\n\n\n

<\/div>
<\/th><\/th><\/th><\/tr><\/thead>
Member State\/ institution <\/td>Specifications <\/td>Level <\/td><\/tr>
Netherlands <\/td>No warrant needed, only a written description of the objective and subject of the investigation. <\/td>No restrictions <\/td><\/tr>
Italy <\/td>No warrant needed, only if it wants to use the \u2018strong arm\u2019 <\/td>No restrictions <\/td><\/tr>
<\/td><\/td><\/td><\/tr>
European Commission <\/td>No warrant needed, unless assistance a warrant-requiring Member State is needed. <\/td>Medium restrictions <\/td><\/tr>
United Kingdom <\/td>No warrant but two working days\u2019 written notice unless there is reasonable suspicion, or the competition authority is unable to give notice besides all reasonable steps. The competition authority does not need two working days\u2019 notice if it has a warrant from the High Court. In some circumstances, competition authority officials are granted additional powers under criminal law statutes <\/td>Medium restrictions <\/td><\/tr>
<\/td><\/td><\/td><\/tr>
Germany <\/td>A search warrant issued by the local court at the authority's principal place of business is generally required. Only where a prior court application would cause a delay that could jeopardise the investigation, can a judicial search warrant be dispensed with. <\/td>Hard restrictions <\/td><\/tr>
Ireland <\/td>Prior warrant of judge of the District Court <\/td>Hard restrictions <\/td><\/tr>
Spain <\/td>Prior consent of the party or judicial warrant <\/td>Hard restrictions <\/td><\/tr>
Portugal <\/td>Prior warrant competent of the judicial authority <\/td>Hard restrictions <\/td><\/tr>
Austria <\/td>Prior order of the Cartel Court <\/td>Hard restrictions <\/td><\/tr>
Belgium <\/td>Specific instructions issued by a competition prosecutor and prior authorization of the president of the Competition Council <\/td>Hard restrictions <\/td><\/tr><\/tbody><\/table><\/div>WP DataTables<\/a>\n\n\n\n

As one can see, there are discrepancies in the dawn raid designs between Member States: the majority (6) require a prior warrant before conducting a dawn raid, whilst some do not (3).<\/span><\/p>\n\n\n\n

The cases for (dis)proportionate dawn raids also differ among the Member States and do not necessarily relate to the level of restrictions. Moreover, the differences in dawn raid frameworks are not based on the legal tradition of the countries involved (i.e. the level of restrictions is not determined by whether is a civil or common law tradition).<\/span><\/p>\n\n\n\n

Qualification as \u2018meaningful\u2019<\/b><\/span><\/p>\n\n\n\n

Judicial review might suffice for obtaining an adequate solution (e.g. when the information obtained is not considered confidential). There are, however, three obstacles in the judicial reviews of dawn raids:\n
1.) The measure subject to review must produce legally binding effects. These effects should be capable of diminishing the applicant\u2019s legal position (a threshold that is hard to reach);\n
2.) If the threshold is not reached, the affected party has to wait until the NCA issues a final decision. Only then the undertaking could file for appeal (which could take years); \n
3.) Finally, even when the dawn raid is declared illegal or disproportionate, there are no mechanisms to order the NCA to return or destroy the materials they have collected.<\/span><\/p>\n\n\n\n

On the other hand, it is not clear whether the courts can shape the behaviour of the NCAs by means of the decisions reached through judicial review. This would, moreover, be contrary to the division of powers between the judiciary and executive offices. A hint of failure may stem from the fact that there have been recent cases in which the courts have declared the illegality of the raids (Belgium and the Netherlands – as seen in the introduction – as well as Spain<\/a>).<\/span><\/p>\n\n\n\n

Therefore, judicial review of dawn raids is not a \u2018meaningful\u2019 measure in favour of undertakings.<\/span><\/p>\n\n\n\n

What could be the improvements?<\/b><\/span><\/p>\n\n\n\n

A solution could be to implement a uniform system in which a full prior judicial review of an NCA dawn raid decision is required. This will, however, undermine the efficacy of dawn raids as effective investigative tools. Additionally, this would not ensure that the dawn raid will be legally conducted (in the Belgium case, whilst prior authorization was required, the raid was declared invalid in the end). Furthermore, this requirement would also undermine the \u2018procedural autonomy\u2019 of the NCAs (i.e. the right for Member States to freely determine national administrative procedures).<\/span><\/p>\n\n\n\n

Currently, two type of measures could be used to achieve more \u2018meaningful\u2019 results:\n
1.) uniforming the application of the procedural rules on dawn raids through an EU Directive; or \n
2.) implement accountability measures. These could hold the authority\u2019s officials responsible for an illegal exercise of its inspection powers. For instance, by measures such as bad performance reports or economic fines could be imposed to the officials responsible.<\/span><\/p>\n\n\n\n

The first alternative could be favoured. It is less intrusive and would not undermine the officials\u2019 willingness to act. Moreover, choosing a Directive instead of a Regulation would not threaten the national autonomy for Member States. There are no real indicators that legal tradition plays a role in the regulation of dawn raids, but there may be policy choices that flow from these traditions. These traditions should be preserved. Uniformity could be used to lay down some rules or principles oriented to the protection of the undertakings\u2019 rights. It could also \u2018lower\u2019 the criteria required for admitting this judicial review actions; or even include the possibility to return or destroy documents after a raid is declared illegal.<\/span><\/p>\n\n\n\n

The Commission had the perfect opportunity to implement these measures under Directive 2019\/1<\/a>. It was, however, only focused on giving a minimum set of investigative, decision-making and sanctioning powers; as well as structural measures that would ensure the independence of the NCAs. No regard was given to the protection of rights besides mere declarations of compliance with the principles of EU law and the Charter.<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

By Annabel, C\u00e9dric & Jorge Dawn raids are praised as effective investigative tools since they provide direct and clear access to information that would otherwise be safe-locked in companies\u2019 premises. They are seen as part of the \u201cgo-to tools\u201d for national competition authorities (\u201cNCAs\u201d) and the European Commission to gather evidence in their investigation. The … Continue reading “Safe-raids? Meaningful judicial review of dawn raids on business premises”<\/span><\/a><\/p>\n","protected":false},"author":94,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-1495","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"post_mailing_queue_ids":[],"_links":{"self":[{"href":"https:\/\/eulawenforcement.com\/index.php?rest_route=\/wp\/v2\/posts\/1495","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/eulawenforcement.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/eulawenforcement.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/eulawenforcement.com\/index.php?rest_route=\/wp\/v2\/users\/94"}],"replies":[{"embeddable":true,"href":"https:\/\/eulawenforcement.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1495"}],"version-history":[{"count":10,"href":"https:\/\/eulawenforcement.com\/index.php?rest_route=\/wp\/v2\/posts\/1495\/revisions"}],"predecessor-version":[{"id":1655,"href":"https:\/\/eulawenforcement.com\/index.php?rest_route=\/wp\/v2\/posts\/1495\/revisions\/1655"}],"wp:attachment":[{"href":"https:\/\/eulawenforcement.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1495"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/eulawenforcement.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1495"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/eulawenforcement.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1495"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}