Dawn Raids Under Challenge. Due Process Aspects on the European Commission’s Dawn Raid Practices, Helene ANDERSSON

Helene Andersson

This section selects books on themes related to competition laws and economics. This compilation does not attempt to be exhaustive but rather a survey of themes important in the area. The survey usually covers publication over the last three months after publication of the latest issue of Concurrences. Publishers, authors and editors are welcome to send books to stephane.rodrigues-domingues@univ-paris1.fr for review in this section.

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The unannounced inspections - or dawn raids - permitted by Article 20 of Regulation 1/2003 are often one of the first actions of the European Commission in competition cases. These ’surprise’ visits to the premises of companies suspected of being involved in anti-competitive practices, usually starting at dawn, are likely to arouse the fears of the companies concerned. In a context of increasing sophistication of cartels between companies, unannounced inspections can be crucial to the success of an investigation, and as such are a particularly effective way of ensuring compliance with EU competition law rules. However, this process is likely to lead to disproportionate interference with the fundamental rights of companies, in particular the right to privacy and the right not to self-incriminate.

This book thus deals with a problem inherent in dawn raids, namely the need to reconcile the effectiveness of EU competition law with respect for the fundamental rights of companies. Helene Andersson, who teaches at the University of Stockholm, while also having a solid professional experience in the private sector, specialising in cartel issues, has therefore chosen to consider unannounced inspections by the European Commission from the perspective of fundamental rights, as guaranteed by the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union. The book examines the responses of the European Court of Human Rights and the Court of Justice of the European Union.

The first part of the book is devoted to presenting the various elements that make it possible to apprehend the subject. In particular, it recalls that, while the possibility for the Commission to conduct inspections has existed since Regulation 17/62, the 2002 Leniency Notice gave these inspections a predominant role, since the first undertaking to provide evidence allowing the adoption of an inspection decision will be able to benefit from immunity. The risks of violation of fundamental rights are all the more important as Regulation 1/2003 extended the Commission’s powers of inspection to cover other premises, including the homes of directors or employees of undertakings. Moreover, judicial authorisation is only required in certain cases.

Within this first part, a chapter is devoted in particular to setting out the general framework for the protection of fundamental rights in the European Union, and therefore deals with well-known issues. Another chapter examines whether the sanctions imposed by the Commission for violations of Articles 101 and 102 TFEU are of a criminal nature within the meaning of the case law of the European Court of Human Rights.

The second part constitutes the real heart of the book, and examines the existence of possible divergences between the Convention system and the Union’s legal order on the issue of unannounced competition inspections.

A chapter is thus devoted to examining the possibility of the Commission having access to the premises of companies, with regard to their right to privacy. After an introduction on the right to privacy of legal persons, and on the former disagreement between the European Court of Human Rights and the Court of Justice on this subject, developments on the absence of absolute necessity, in the light of the case law of the European courts, of an ex ante control on the Commission’s decision to carry out an unannounced inspection come to the heart of the matter. It is noted that neither the Court of Justice nor the European Court of Human Rights regards the absence of a judicial warrant as constituting an infringement of the right to respect for private life, but that the Commission’s decision must be reasoned, since reasonable suspicion must justify it. The question of the territorial scope of the Commission’s decisions is also examined.

In addition, a short chapter deals specifically with "surprise" inspections in the context of the Pharmaceutical Sector Inquiry.

The next chapter focuses on the respect of fundamental rights by the measures taken during the inspection. Many questions arise in this context: what documents can Commission officials consult, do they have the right to copy servers and hard disks in order to subsequently carry out the selection of the relevant elements, within the Commission and not on the company’s premises? To what extent is the undertaking required to cooperate? These are all questions to which this book provides answers through an analysis of the case law of the European courts.

The right not to self-incriminate is also the subject of a chapter detailing the case law of the courts of Strasbourg and Luxembourg. Another chapter is devoted to the confidentiality of communications between the company and its counsel, to which the European Court of Human Rights grants more extensive protection than the Court of Justice. The issue of access to the judge, with regard to interim measures and ex post judicial review of the decision to carry out an inspection and the measures resulting therefrom, is also examined, and reveals deeper divergences between the standards of the Strasbourg Court and the Luxembourg Court, which the author deplores.

The possibility for the Commission to carry out inspections in the private homes of company employees, although rarely used, is also a highly sensitive issue from a fundamental rights perspective. It is therefore rightly dealt with in this book.

The third part of the book is a synthesis of the previous developments. It is followed by a rich bibliography, as well as a very useful detailed index, which includes all the judgments dealt with in the book. All in all, this book is not only of practical interest, both for companies and practitioners, but also of theoretical interest, as it offers stimulating food for thought on the effectiveness and legitimacy of EU competition law.

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Author

  • University of Strasbourg

Quotation

Julie Rondu, Dawn Raids Under Challenge. Due Process Aspects on the European Commission’s Dawn Raid Practices, Helene ANDERSSON, February 2019, Concurrences N° 1-2019, Art. N° 89464, pp. 244-245

Publisher Hart Publishing, Hart Studies in Competition Law,

Date 28 June 2018

Number of pages 312

ISBN 9781509920167

Visites 297

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