Dawn Raids Under Challenge: Due Process Aspects on the European Commission's Dawn Raid Practices

by Helene Andersson

Overview

This book examines the European Commission's dawn raid practices in competition cases from a fundamental rights perspective. In recent years, the Commission has adopted a new and more aggressive enforcement policy, amid a growing awareness that cartels and abuse of market power represent an economic harm and need to be punished. In response, enforcement has been strengthened by the grant of more wide-reaching powers to competition authorities. But how does this impact on the framework of fundamental rights? This study seeks to answer that question by examining the obligations imposed by the Charter and the ECHR and the response of the Luxembourg and Strasbourg Courts. It shows that where the Strasbourg Court has managed to strike a balance between efficiency concerns and the rights of undertakings, the EU courts' judicial control is not equally balanced. This book is an essential and timely examination of this important question.

Product Details

ISBN-13:	9781509969432
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

Helene Andersson is a Lecturer in Law at the University of Stockholm.

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

Editorial Reviews

This book is not only of practical interest for both companies and practitioners, but also of theoretical interest, since it offers stimulating ideas for the effectiveness and legitimacy of EU competition law. (Translated from the original French)” —Concurrences

“[T]his book provides a comprehensive, insightful analysis of the current state of the relevant law and jurisprudence of those fundamental rights that are critical in the context of Commission dawn raids... This book is the result of thorough research and provides an excellent starting point for further discussions on the appropriate scope and limitations of the Commission's investigatory powers.” —European Competition and Regulatory Law Review

“Dawn Raids Under Challenge represents an exhaustive contribution to the debate on the compliance of the EU competition enforcement framework with European human rights' standards... This book is extremely well researched and tightly argued and will be of great interest of academics and practitioners.” —European Competition Law Review

“Andersson presents her study in a scrupulous and objective way, acknowledging the importance of both interests concerned... I definitely recommend the reviewed book to both practitioners and researchers specializing in competition law.” —Yearbook of Antitrust and Regulatory Studies

From the Publisher