Spain: An overview of case law on competition dawn raids and the limits of inspections

Dawn raids are currently one of the essential tools for competition authorities to investigate infringements and enforce competition law. However, the inspection faculties of the authorities are not without their limits. Competition inspections affect the fundamental rights of the undertakings, which are protected by the Spanish Constitution, the ECHR and the Charter of Fundamental Rights. Fundamental rights such as the respect of the company’s privacy, the right to a fair trial, the presumption of innocence or even the principles of proportionality and reasoned decisions establish clear limits on these intrusions in the private scope of the companies. Inspections are means of enforcing the law, but must be carried out within the law. Spanish case law has recently dealt with several issues concerning the interaction between dawn raids and human rights. This case law has established the minimum requirements the inspection order must comply with; the information that should be provided to the party concerned at the beginning of dawn raids; the documents the competition authority is entitled (or not) to seize and the consequences for a fine imposed on a company when the evidence proceeds totally or partially from a dawn raid declared illicit. This article provides an overview of the most recent Spanish case law on this matter and its similarities to the evolution of the European Union case law.

I. Introduction 1. The Spanish Competition Law 15/2007 [1] provided specific and detailed regulations on dawn raids carried out by the Spanish competition authorities. These regulations were subsequently included—and expanded to some extent—by Law 3/2013 of 4 June on the Competition and Market Authority (Comisión Nacional de los Mercados y la Competencia, the “CNMC”). [2] The CNMC has carried out a large number of dawn raids over the past few years, these being prompted to some extent by the increasing use of the leniency programme introduced by Law 15/2007. However, this extensive use of dawn raids has not always respected the limits derived from applying the fundamental rights to companies that are established in our Constitution, the European Convention for Human Rights ("ECHR") and

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