On 18 February 2015, the Brussels Court of Appeal found that a dawn raid conducted by the Belgian Competition Authority (BCA) in 2006 was illegal.
In 2006, the BCA had conducted a dawn raid at Tui, a tour operator involved in the Travel Agents case, on the basis of the Belgian Competition Act of 1999. Under the Act, a dawn raid only required the prior authorisation of the Corps des Rapporteurs/Korps van Verslaggevers, the administrative investigating body at that time.
The Court found the dawn raid to be in breach of the Constitutional right to the inviolability of the home (article 15 of the Belgian Constitution), since the conditions laid down in the Constitution for dispensing with the need for prior judicial approval were not met. The case law of the European Court of Human Rights in relation to the compatibility of dawn raids with Articles 6.1 (right to a fair trial) and 8.1 ECHR (inviolability of the home) allows the requirement of a prior judicial approval to be dispensed with in the case of dawn raids provided there is an effective judicial appeal available within a reasonable period of time after the event. However, the Belgian Court considered this case law to be irrelevant, finding that the Belgian Constitution provides a higher level of protection. The Court nevertheless considered whether effective judicial control existed after the event in Belgium at the time of the dawn raids, and concluded that it did not.
On this basis the Court held that the BCA could not rely on documents either obtained directly through the illegal dawn raid or indirectly resulting therefrom. The Court held that such documents should be expunged from the case file in respect of all companies involved, including in respect of the companies where no dawn raids were conducted, in line with the principle of good administration.
This is the first of three recent cases brought before the Brussels Court of Appeal in which the Court has been asked to rule on the legality of conducting dawn raids without prior judicial warrant and/or the existence of an immediate appeal route following the dawn raid.
Please click on the links below for the other articles in the March 2015 competition newsletter:
