Belgian Supreme Court confirms illegality of dawn raids due to the lack of a warrant
On 26 April 2018, the Belgian Supreme Court held that dawn raids in the travel sector had been conducted illegally as protection offered by the Belgian Constitution is wider than Article 8 of the European Convention on Human Rights (ECHR). As a result, the information unlawfully obtained had to be removed from the case file.
In 2006, the Belgian Competition Authority (BCA) launched a series of dawn raids in the Belgian travel sector. Following the investigation, several travel agents and one association received a statement of objections. However, the Brussels Court of Appeal held on 18 February 2015 that the BCA was prohibited from using any information received during or as a result of the inspections of 2006 because it did not have a judicial warrant authorizing the dawn raids – even though it was not required under the previous Competition Act. In addition, the absence of legal means to contest the lawfulness of the inspections before an independent judge within a reasonable time was deemed to breach Article 6 ECHR. The only remedy available to the Court was to prohibit the BCA from using any information received during or as a result of the inspections.
The judgment, which will potentially affect other investigations as well, constituted a major setback for the newly transformed BCA, which challenged the judgment before the Belgian Court of Cassation. However, the recent judgment of the Supreme Court conclusively dismissed the various objections raised by the BCA.
In particular, the Court recalled first that while under the ECHR a judicial warrant may not be required in all circumstances, the Court of Appeal was right in holding that the Belgian Constitution could offer a higher level of protection by requiring a warrant. Not surprisingly, the legislator did not wait for the outcome of the case to include the need to obtain a warrant from an independent judge in the new Competition Act of 2013.
Next, the Supreme Court agreed with the Court of Appeal that the consequences of breaches were irreversible and that the information unlawfully obtained had already been integrated in the statement of objections. In the end, the Court of Appeal was right to conclude that the only remedy to undo the negative implications of the breach was to remove the information unlawfully obtained from the case file.
This judgment is likely to put an end to a saga that has been haunting both the BCA and the travel sector for many years. It also makes clear that documents that are illegally obtained during a dawn raid will have to be removed from the file and that companies must have the time to appeal against such investigation measures.
This article was published in the Competition Law Newsletter of June 2018. Other articles in this newsletter:
European Court of Justice rules EY did not violate stand-still obligation in Danish merger
European Commission must reassess Lufthansa's request to waive merger commitments
Dutch Appeal Court drastically reduces cartel fine Dutch construction company
District Court of Amsterdam declines jurisdiction in competition law damages case
