Dawn Raids Under Challenge: Due Process Aspects on the European Commission's Dawn Raid Practices
344Dawn Raids Under Challenge: Due Process Aspects on the European Commission's Dawn Raid Practices
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Overview
Examining the obligations imposed by the Charter and the ECHR and the response of the Luxembourg and Strasbourg Courts, the book shows that whereas the Strasbourg Court manages to strike a balance between efficiency concerns and fundamental rights, the approach of the EU Courts is not equally balanced.
The dawn raid is a powerful tool on which the European Commission relies heavily in its antitrust investigations. In 2022, the Commission carried out dawn raids in private homes for the first time in many years and it has declared its intent to make greater use of the power to inspect private premises. Furthermore, the European Commission is expanding its dawn raid practices into new areas of law. Both the Digital Markets Act and the Foreign Subsidies Regulation empower the Commission to carry out dawn raids and to impose heavy fines on anyone failing to cooperate. Ensuring adequate procedural safeguards is therefore more important than ever.
The book provides an essential and timely examination of this important subject, and is of great practical interest to companies, practitioners, and enforcers. It is also of theoretical interest, offering stimulating reflections on the effectiveness and legitimacy of the Commission's enforcement powers.
Product Details
ISBN-13: | 9781509969432 |
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Publisher: | Bloomsbury Publishing |
Publication date: | 06/13/2024 |
Series: | Hart Studies in Competition Law |
Sold by: | Barnes & Noble |
Format: | eBook |
Pages: | 344 |
File size: | 541 KB |
About the Author
Table of Contents
Abbreviations xi
Table of Cases xiii
Table of Legislation xxiii
Part I Overview
1 Introduction 3
I Scope 4
A The Right to Privacy 5
B The Need for an Ex Ante Review of Inspection Decisions 5
C The Subject Matter and Purpose of Inspections 6
D Information and Documents to be covered by the Inspection 6
E The Privilege against Self-Incrimination 7
F Legal Professional Privilege 7
G Judicial Review of Inspection Decisions and Measures Taken on the Basis of These 8
2 Enforcement of the EU Competition Rules 9
I Enforcement of the EU Competition Rules 11
A Unannounced Inspections and the Obligation to Cooperate 13
B Obstructing the Commission's Investigation 16
C Judicial Review 17
i Ex Ante Control 17
ii Interim Measures 18
iii Article 263 TFEU 21
II International Cooperation and the Effects on EU Antitrust Enforcement 23
III Enforcement: Concluding Remarks 25
3 Fundamental Rights in the EU 26
I The Charter 26
A Historical Background 26
B The Charter: Its Scope and Contents 27
C Two Different Standards of Protection? 29
D The Charter: Concluding Remarks 31
II Fundamental Rights as General Principles 32
III The ECHR 32
A The EU's Accession and the Role of the ECHR in EU Law 33
IV The Current Role of ECHR Law in EU Fundamental Rights Protection 34
V Identifying the Role of the ECHR in the EU Legal System: Concluding Remarks 35
4 Criminal Sanctions 38
I Competition Law Infringements: A Criminal Offence? 38
II The ECJ's View on the Criminal Nature of Competition Cases 41
III Conclusion 43
Part II The Inspection: Is There a Clash between EU and Convention Systems?
5 Introduction to Part II 47
I Unannounced Inspections: Efficiency v Fundamental Rights 47
6 The Right to Enter 52
I Legal Persons and the Right to Privacy 53
A A Right to Privacy: The View of the EU Courts 54
i Hoechst 54
ii Dow Chemical 56
iii Roquette Frères 56
iv Strintzis Lines Shipping 57
v Nexans and Prysmian 57
B The View of the EU Courts: Conclusions 58
C A Right to Privacy: The View of the Strasbourg Court 58
i Niemietz 58
ii Sociéteacute; Colas 62
D A Right to Privacy: Concluding Remarks 63
II Ex Ante Review of Inspection Decisions 64
A The View of the Strasbourg Court 64
i Société Colas 64
ii Camenzind 67
iii Funke 68
iv Delta Pekârny 69
v Robathin 71
vi Bernh Larsen Holding 72
B The View of the EU Courts 73
i Hoechst 73
ii Deutsche Bohn 74
III Grounds for Suspicion: Can the Commission Go Fishing? 75
A Grounds for Suspicion: The View of the EU Courts 76
i Dow Benelux 77
ii Roquette Frères 78
iii France Télécom 80
iv Prysmian and Nexans 81
v HeidelbergCement 84
vi Cementos Portland Valderrivas 87
vii Deutsche Bahn 89
B Reasonable Grounds for Suspicion: Against Whom? 89
C Grounds for Suspicion: The View of the Strasbourg Court 91
i Robathin 91
ii Wieser and Bicos 92
D Grounds for Suspicion: Concluding Remarks 94
IV The Geographical Scope of Inspection Decisions 95
V The Previous Handling by National Authorities 96
VI The Right to Enter: Concluding Remarks 100
7 Dawn Raids in Sector Inquiries 103
I Sector Inquiries: Why and When? 103
II Case Law on the Scope of the Commission's Powers: SEP 106
III Article 17 and the Possibility of Carrying Out Inspections 107
IV Dawn Raids in Sector Inquiries: Concluding Remarks 111
8 Once Inside: Measures Taken During the Inspection 113
I A Typical Dawn Raid 113
II Which Information is Fair Game? 117
III Implications of the Duty to Specify the Subject Matter and Purpose of an Inspection 118
A The View of the EU Courts 118
B The View of the EU Courts: Concluding Remarks 123
C The View of the ECtHR 124
i The Scope of the Search Warrant: Robathin 124
ii Limitations to the Scope of a Search Warrant: Tamosius 127
iii The Scope of Searches in Competition Cases: Vinci Construction 128
iv The View of the ECtHR: Concluding Remarks 130
IV Bringing it Back to Brussels: A Formality or a Fundamental Error? 130
A The View of the ECtHR 132
i Collection of Electronic Data: Wieser and Bicos 132
ii Collection of Electronic Data: Bernh Larsen Holding 134
B The View of the ECtHR: Concluding Remarks 136
C The View of the EU Courts 138
i Continued Selection in Brussels: Nexans and Prysmian 138
D Concluding Remarks 140
V Measures Taken on the Basis of Inspection Decisions: Final Remarks 142
9 The Privilege against Self-Incrimination 145
I The View of the Strasbourg Court: Part I 147
A The Birth of the Privilege in ECHR Law: Funke v France 147
B The Right to Remain Silent: John Murray v United Kingdom 148
C Pre-existing or 'Real' Evidence: Saunders 150
D Protection during Preparatory Investigations: IJL and others v United Kingdom 154
E Production of Incriminating Evidence: JB v Switzerland 155
II The View of the Strasbourg Court: Part II 157
A Protecting 'Real Evidence': Jalloh v Germany 158
B Accepting Requirements to Produce Incriminating Information: O'Halloran and Francis v United Kingdom 159
III The Strasbourg Case Law: Concluding Remarks 161
IV The EU Case Law 166
A No Obligation to Admit Guilt: Orkem 166
B Use of the Answers Provided: LVM 168
i The View of the General Court 168
ii The View of the ECJ 169
C The Obligation to Produce Documents: SGL Carbon 170
i The View of the General Court 171
ii The View of the ECJ 172
V The EU Case Law: Conclusion 173
VI The Privilege against Self-Incrimination: What Conclusions Maybe Drawn? 175
10 Legal Professional Privilege 179
I The Rationale behind the Privilege 179
II The Strasbourg Court's View on Legal Professional Privilege 182
A Protection of Correspondence from the Ghent: Campbell 182
B The Scope of the Margin of Appreciation: Foxley v United Kingdom 184
C Absence of Clear Rules Governing Seizures: Sallinen and Others 185
D Legal Professional Privilege in Relation to Dawn Raids: Vinct Construction 187
E Review and Restitution of Privileged Documents: Janssen Cilag 190
III The Scope of Protection Afforded under ECHR Law: Concluding Remarks 191
IV The ECJ's View on Legal Professional Privilege 192
A The Emergence of the Privilege under EU Law: AM & S 192
B Protection of Internal Documents: Hilti 194
C In-house Counsels and the Privilege: Akzo 194
i The View of the General Court 195
ii The View of the ECJ 197
V The Scope of Protection Afforded under EU Law: Concluding Remarks 198
VI Legal Professional Privilege: What Conclusions Maybe Drawn? 199
11 Access to Courts 203
I Interim Measures 203
II Ex Post Review of Inspection Decisions and Measures Taken on Their Basis 207
A Dawn Raids and the Right to a Fair Trial: The View of the Strasbourg Court 207
i Review of Measures Taken During the Inspection: Ravon v France 207
ii Review of Inspection Decisions: Primagaz 209
iii Timely and Guaranteed Review: Canal Plus 210
iv Restitution of Documents: Vinci Construction 211
v Judicial Review and Article 8 ECHR: Robathin 212
B The Strasbourg Case Law: Concluding Remarks 214
C Dawn Raids and Judicial Review: The View of the EU Courts 214
i Review of Implementing Measures: Nexans 214
D The View of the EU Courts: Concluding Remarks 216
III The Right to Judicial Review: What Conclusions Maybe Drawn? 218
12 Dawn Raids at Non-business Premises 223
I The Legal Framework Surrounding Dawn Raids in Private Homes 224
II Inspections in Private Homes: The View of the Strasbourg Court 226
A Keslassy v France 226
III Inspections at Non-business Premises: Concluding Remarks 228
Part III Summing Up
13 Conclusions 231
I General Observations 231
II Summary of the Findings 234
A The Right to Privacy 234
B The Need for an Ex Ante Review of Inspection Decisions 235
C The Subject Matter and Purpose of the Inspection 237
D Information and Documents to be covered by the Inspection 239
E The Privilege against Self-Incrimination 242
F Legal Professional Privilege 245
G Judicial Review of inspection Decisions and Measures Taken on Their Basis 248
III Joining the Dots 252
A Can a Balance be Struck? 252
B Placing the Dawn Raid Procedure within a Broader Setting 256
C Striking the Balance 258
i Extending the Scope of Legal Professional Privilege 258
ii Providing Greater Access to Courts 260
D A Final Note 262
Bibliography 263
Index 279