No full judicial review of each document seized during dawn raid

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:

• Pay-for-delay: brightened lines between object and effect restrictions
• The ACM may cast the net wide in cartel investigations
• Den Bosch Court of Appeal revives damages claims in Dutch prestressing steel litigation
• CDC/Kemira: Amsterdam Court of Appeal applies European principle of effectiveness to limitation periods
• Consumers and Sustainability: 2020 competition enforcement buzzwords