Ben Holles de Peyer[1]

 

I. Introduction

The European Commission (“Commission”) has far-reaching powers of investigation for the enforcement of European Union (“EU”) competition law. In particular, the Commission has the power to issue requests for information and to carry out inspections in both antitrust and merger control proceedings. Articles 18, 20 and 21 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (“Regulation 1/2003”) regulate the Commission’s ability to require information from undertakings and associations thereof, as well as to inspect business and other premises in antitrust proceedings. Articles 11 and 13 of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (“Regulation 139/2004”) provide the Commission with similar powers in merger control cases.

The exercise of such powers is subject to limitations which derive from primary and secondary sources of EU law, as well as from the case law of the General Court (“GC”) and the Court of Justice (“CJ”) (together the “EU Courts”). In particular, in exercising its powers of investigation, the Commission must respect the fundamental rights of all parties involved, including those enshrined in the European Convention on Human Rights (“ECHR”).

Indeed, although at present the ECHR is not formally binding upon the Commission due to the fact that the EU is yet to fulfil its obligation to accede to the ECHR under Article 6(2) of the Treaty on European Union (“TEU”) –and consequently the Commission is not yet subject to the external control of the European Court of Human Rights (“ECtHR”)–[2] the levels and standards of protection established in the ECHR and the case law of the ECtHR are substantively binding upon the Commission for two reasons.

First, because the ECHR constitutes one of the key legal sources from which the EU Courts draw inspiration when safeguarding fundamental rights as general principles of EU law.[3] In this context, the EU Courts have confirmed, on multiple occasions, that “the Union must respect fundamental rights, as guaranteed by the [ECHR]”.[4]

Second, because the ECHR is binding upon the Commission pursuant to Article 6(1) of the TEU in conjunction with Articles 52(3) and 53 of the Charter of Fundamental Rights of the European Union (“Charter”). While the former provision establishes that the Charter has the same legal value as the EU treaties, the latter ones establish, respectively, that “[i]n so far as this Charter contains rights which correspond to rights guaranteed by the [ECHR], the meaning and scope of those rights shall be the same as those laid down by the [ECHR]” and that “[n]othing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in […] the [ECHR]”.[5]

In recent years, there has been significant debate on whether and to what extent the regulatory framework that regulates the Commission’s powers of investigation, in particular its ability to carry out inspections, as well as the effective exercise of such powers by the Commission in specific cases, are compatible with fundamental rights standards, in particular with Article 8 of the ECHR, which establishes that “[e]veryone has the right to respect for his private and family life, his home and his correspondence”.[6]

This article analyzes the limits to the Commission’s powers of inspection in competition cases under Article 8 of the ECHR. Section II carries out an in-depth analysis of the ECtHR’s case law on searches and seizures under Article 8 of the ECHR. Section III assesses the compatibility of the EU regulatory framework and the Commission’s practice on inspections with Article 8 of the ECHR. Section IV concludes.

 

II. The ECtHR’s Case Law on Searches and Seizures Under Article 8 of the ECHR

 

A. Introduction

In assessing whether a search and/or seizure measure carried out by an administrative authority in business and/or non-business premises is compatible with Article 8 of the ECHR, the ECtHR conducts a twofold analysis.

First, the ECtHR examines whether such a measure interferes with Article 8(1) of the ECHR, i.e., whether it has an effect on a natural or legal person’s private life, family life, home and/or correspondence which is such that, unless justified under Article 8(2) of the ECHR, it would constitute a breach of that person’s rights.

Second, if the measure does interfere with and thus falls within the scope of Article 8(1) of the ECHR, the ECtHR then analyzes whether such a measure is justified under Article 8(2) of the ECHR. In particular, the ECtHR will conclude that a given measure or interference is justified under Article 8(2) of the ECHR if it meets three cumulative conditions: (i) it is “in accordance with the law”; (ii) it pursues one or more of the “legitimate aims” set out in Article 8(2) of the ECHR; and (iii) it is “necessary in a democratic society”.[7] If one or more of these conditions are not met, the measure is contrary to Article 8 of the ECHR.

The ECtHR has made two additional clarifications. First, it has established that exceptions under Article 8(2) of the ECHR must be “interpreted narrowly” and the need for them must be “convincingly established”.[8] Second, it has clarified that the essential purpose of Article 8 of the ECHR is to “protect the individual against arbitrary interference by the public authorities”.[9]

 

B. The Existence of an Interference Under Article 8(1) of the ECHR

The ECtHR has invariably found that searches conducted by an administrative authority in business and/or non-business premises, potentially involving the seizure of paper and/or electronic documents, interfere with rights protected under Article 8(1) of the ECHR.

While in some cases the ECtHR has only focused on the impact of search and seizure measures on the privacy of either the home[10] or correspondence,[11] in most cases it has assessed the combined impact of such measures on both private life and privacy of the home,[12] on both private life and privacy of correspondence,[13] on both privacy of the home and of correspondence,[14] or on private life, privacy of the home and privacy of correspondence jointly.[15] In a number of instances, the ECtHR has limited itself to stating that a search and seizure measure had an impact on the “applicant’s rights under Article 8 of the Convention”, without specifying the particular right(s) that it deemed affected by the measure at issue.[16]

One issue which was intensely debated in the past was whether Article 8(1) of the ECHR protected only natural or also legal persons. However, in Niemietz, the ECtHR established that the notions of “private life” and “home” should be interpreted as “including certain professional or business activities or premises”, but that Contracting States may have the ability to impose more far-reaching restrictions in such cases than they are able to impose when private or domestic activities or premises are involved.[17] In Colas Est, the ECtHR went further, stating that “the rights guaranteed by Article 8 of the Convention may be construed as including the right to respect for a company’s registered office, branches or other business premises”.[18] This has been reiterated in more recent cases such as Delta Pekárny, which concerned the compatibility with Article 8 of the ECHR of inspections carried out by the Czech national competition authority in a legal person’s business premises.[19]

 

C. The Existence of a Justification Under Article 8(2) of the ECHR

As explained above, once it has been established that a given search and seizure measure interferes with Article 8(1) of the ECHR, the ECtHR will only conclude that such a measure is justified under Article 8(2) of the ECHR if it meets three cumulative conditions. These conditions are analyzed in turn below.

 

i. The Measure Is “In Accordance with the Law”

Pursuant to well-established case law of the ECtHR, a search and seizure measure may only be deemed to be in accordance with the law if it meets four cumulative sub-conditions.[20]

First, such a measure must have a legal basis in domestic law.[21] In this regard, the ECtHR has clarified that the notion of “law” must be subject to a substantive –not a formal– interpretation, covering the national legal provisions at issue as interpreted by the competent courts.[22] The ECtHR has also stressed that it has only a limited power to review national law, as this task is the responsibility, primarily, of the domestic authorities, in particular the courts.[23]

Second, the domestic law that constitutes the legal basis of the search and seizure measure must be accessible to the person affected by such measure.[24] This means, notably, that the relevant statutory provisions and case law must be publicly available.[25]

Third, the consequences of the domestic law for the person affected thereby must be foreseeable.[26] Indeed, such a law must be “formulated with sufficient precision to enable the individual –if need be with appropriate advice– to regulate his conduct”.[27] However, the ECtHR has clarified that absolute certainty with regard to those legal consequences is not required.[28]

Fourth, such domestic law must comply with the rule of law.[29] In this regard, the ECtHR has noted that “the domestic law must provide some protection to the individual against arbitrary interference with Article 8 rights”.[30]

Although these criteria are cumulative, it is noteworthy that in many cases concerning search and seizure measures the ECtHR has only explicitly analyzed the first sub-condition, i.e., the existence of a legal basis in domestic law.[31] Additionally, in a number of cases, the ECtHR has analyzed the existence of safeguards against arbitrary or abusive interferences with an individual’s rights under Article 8(1) of the ECHR when assessing whether the search and seizure measure was necessary in a democratic society, rather than under the abovementioned sub-condition relating to the compatibility with the rule of law.[32]

 

ii.The Measure Pursues One or More “Legitimate Aims”

The measure must pursue one or more of the legitimate aims set out in Article 8(2) of the ECHR. These include the protection or furtherance of “national security”, “public safety”, “the economic well-being of the country”, “health or morals” and/or of “the rights and freedoms of others”, and/or the “prevention of disorder or crime”.[33] This list of legitimate aims is exhaustive and must be interpreted in a restrictive manner.[34]

In most cases relating to search and seizure measures, the ECtHR has concluded that such measures, which are carried out in order to gather evidence of a specific wrongdoing, are justified by the aims of: (i) preventing disorder/crime;[35] (ii) protecting the rights/freedoms of others;[36] (iii) furthering the economic well-being of the country;[37] (iv) preventing disorder/crime and protecting the rights/freedoms of others;[38] (v) preventing disorder/crime and furthering the economic well-being of the country;[39] or (vi) preventing disorder/crime, protecting the rights/freedoms of others and public safety.[40]

iii.     The Measure Is “Necessary in a Democratic Society”

The ECtHR has established that “the notion of “necessity” implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued”.[41] Contracting States have a margin of appreciation when making such an assessment,[42] which is larger in cases concerning the rights under Article 8(1) of the ECHR of legal persons than in cases involving those of natural persons.[43]

The ECtHR has noted that, while search and seizure measures may constitute a necessary and effective means of obtaining physical evidence of an offence or a wrongdoing in certain cases,[44] they may only be used when two cumulative sub-conditions are met. It is noteworthy, however, that the ECtHR does not necessarily assess whether these two sub-conditions are met in all cases, but rather, often carries out a general and relatively unstructured assessment of whether and to what extent a measure may be deemed necessary in a democratic society.

In the first place, there must be “relevant and sufficient” reasons to justify a search and seizure measure.[45]

In the second place, such measures must comply with the principle of proportionality.[46] The ECtHR has established two sub-criteria in this regard. First, it is necessary to “ensure that the relevant legislation and practice afford individuals adequate and effective safeguards against abuse”.[47] The ECtHR has clarified that it will be “particularly vigilant” in instances where national authorities adopt search and seizure measures without prior judicial authorization, in which case “very strict limits on such powers are called for”.[48] However, the ECtHR has also stated that “the absence of a prior judicial warrant could, to a certain extent, be counterbalanced by the availability of an ex post facto judicial review dealing with issues relating to both the legality and proportionality of the measure and the manner in which it ha[s] been implemented” as long as “the domestic remedies [are] capable of providing adequate redress, regard being had to the fact that the impugned interference has already occurred”.[49] Second, by assessing the specific circumstances of the case, it must be determined whether “in the concrete case, the interference in question was proportionate to the aim pursued”.[50]

 

III.         The Compatibility of the EU Regulatory Framework and the Commission’s Practice on Inspections with Article 8 of the ECHR

 

A. Introduction

Articles 20 and 21 of Regulation 1/2003 regulate the Commission’s powers of inspection in Article 101 and 102 of the Treaty on the Functioning of the European Union (“TFEU”) proceedings. While the former provision enables the Commission to inspect undertakings and associations thereof, including, in particular, “any premises, land and means of transport” belonging to them,[51] the latter one empowers the Commission to inspect “any other premises, land and means of transport, including the homes of directors, managers and other members of staff of the undertakings and associations of undertakings concerned”.[52]

As established in Articles 20(4) and 23(1)(c) of Regulation 1/2003, when an inspection of an undertaking or of an association thereof has been ordered by a Commission decision, the undertaking or association is obliged to submit thereto, under threat of fines of up to 1% of its total turnover in the preceding business year. As established in Article 21 of Regulation 1/2003, the Commission is only able to inspect non-business premises when this has been ordered by a Commission decision and after obtaining authorization from the national courts of the Member State concerned.

Similarly, Article 13 of Regulation 139/2004 enables the Commission to carry out inspections of undertakings and associations of undertakings in merger control proceedings, and inspections ordered under Article 13(4) of Regulation 139/2004 are mandatory. However, the Commission does not have the power to carry out inspections in non-business premises in merger control cases.

In what follows, we analyze the EU regulatory framework and the Commission’s practice on inspections in light of Article 8 of the ECHR, in particular, of the ECtHR case law on searches and seizures described above.

 

B. Analysis of Commission Inspections Under Article 8(1) of the ECHR

Mandatory inspections of undertakings or associations of undertakings carried out by the Commission for the enforcement of EU competition law, i.e., those ordered pursuant to Articles 20(4) of Regulation 1/2003 and 13(4) of Regulation 139/2004, interfere with the undertaking’s or the association’s rights under Article 8(1) of the ECHR. This conclusion is consistent with the case law of both the ECtHR and the EU Courts.

As regards the ECtHR, although it is yet to assess the Commission’s powers of inspection under Article 8 of the ECHR, it has analyzed the inspection systems of the national competition authorities of several EU Member States in light of this provision. In Colas Est, the court established that mandatory inspections and seizures of documents conducted by the French authorities at the premises of the applicant undertakings, with a view to obtaining evidence of putative competition law infringements, constituted an interference with the applicants’ rights to respect for their homes.[53] The ECtHR reached the same conclusion in Canal Plus, which also concerned inspections and document seizures by the French authorities in the context of antitrust proceedings.[54] Similarly, in Delta Pekárny, the ECtHR concluded that a mandatory inspection and seizure carried out by the Czech national competition authority in the business premises of the applicant, in connection with a cartel investigation, interfered with the company’s rights to respect for its home and correspondence.[55] Finally, in Vinci and Janssen Cilag, the ECtHR confirmed that the seizure of documentation by the French national competition authority, in the context of a mandatory inspection of business premises carried out in an antitrust investigation, interfered with the rights guaranteed by Article 8 of the ECHR.[56]

As regards the EU Courts, in Deutsche Bahn, the CJ concluded that mandatory inspections of Deutsche Bahn and its subsidiaries’ business premises, ordered by three Commission decisions adopted under Article 20(4) of Regulation 1/2003, were compatible with Article 8 of the ECHR even if there was no prior judicial authorization.[57] By assessing whether the EU inspections system met the conditions to be deemed necessary in a democratic society, in the sense of Article 8(2) of the ECHR –in particular, the existence of safeguards against arbitrary interference, including the extent of post-inspection judicial review– the CJ implicitly recognized that such inspections interfered with Article 8(1) of the ECHR. This is consistent, notably, with Advocate General (“AG”) Mischo’s opinion in Roquette Frères, where the AG noted that “[t]here can be no doubt that [Commission inspections in antitrust cases] indeed constitute an interference within the meaning of Article 8 of the Convention”.[58]

While it may be argued that non-mandatory or simple inspections of business premises, i.e., those carried out under Articles 20(3) of Regulation 1/2003 and 13(3) of Regulation 139/2004, may not constitute an interference within the meaning of Article 8(1) of the ECHR, insofar as they may only be carried out with the consent of the undertaking concerned, such an interpretation may be incorrect, because: (i) non-mandatory or simple inspections are characterized by the existence of a certain degree of de facto compulsion insofar as, absent the undertaking’s consent, the Commission may simply order and conduct a mandatory inspection in a short delay; and (ii) once the undertaking has consented to a non-mandatory or simple inspection, such inspection will proceed in the same way as a mandatory inspection would have, and the Commission may even impose fines on the undertaking if it produces incomplete books or business records, and/or if it provides incorrect or misleading answers to the inspectors’ questions.

It is also clear, in light of the case law of the ECtHR, that Commission inspections of non-business premises, such as the homes of the directors or managers of the relevant undertakings, ordered under Article 21 of Regulation 1/2003, interfere with the rights enshrined in Article 8(1) of the ECHR. Indeed, the protection of natural persons and of private or domestic activities or premises –as opposed to legal persons and professional or business activities or premises– has traditionally been the core concern of Article 8 of the ECHR.[59]

 

C. Analysis of Commission Inspections Under Article 8(2) of the ECHR

In what follows, we analyze whether and to what extent Commission inspections meet the three cumulative conditions of Article 8(2) of the ECHR and are thus justified under this provision.

 

i. Whether Commission Inspections Are “In Accordance with the Law”

Commission inspections for the enforcement of EU competition law meet the first three cumulative sub-conditions described above. In line with well-established case law of the ECtHR, the fourth sub-condition, i.e., compatibility with the rule of law, is analyzed below, when assessing whether Commission inspections are necessary in a democratic society.

First, Commission inspections have a legal basis in EU law, in particular, in EU regulations which are directly applicable in all the EU Member States. As explained above, the Commission’s powers of inspection are regulated in Articles 20 and 21 of Regulation 1/2003 and 13 of Regulation 139/2004. Second, these provisions are accessible to those affected by the inspections of business and non-business premises. The abovementioned regulations have been published in the Official Journal of the EU and the case law of the EU Courts interpreting the relevant provisions is also published and freely accessible. Third, those affected by Commission inspections are able to foresee the consequences thereof. Indeed, both the conditions under which the Commission may exercise its powers of inspection, as well as the consequences of the exercise of such powers for the affected natural and legal persons –including potential fines and periodic penalty payments– are defined in a precise manner in the abovementioned regulations.

 

ii. Whether Commission Inspections Pursue One or More “Legitimate Aims”

Commission inspections for the enforcement of EU competition law pursue one or more of the legitimate aims set out in Article 8(2) of the ECHR.

In the past, the ECtHR has highlighted that the purpose of inspections in antitrust proceedings is to enable national competition authorities to obtain evidence of putative antitrust law infringements, thereby preventing disorder/crime and/or furthering the economic well-being of the country.[60] As regards the EU Courts, in National Panasonic, the CJ noted that Commission inspections for the enforcement of Articles 101 and 102 of the TFEU aim at “ensuring that the rules on competition are applied in the common market”, thereby “prevent[ing] competition from being distorted to the detriment of the public interest, individual undertakings and consumers” and “contribut[ing] to the maintenance of the system of competition intended by the Treaty”.[61] In Roquette Frères, the CJ added that such inspections aim at “ensuring economic well-being in the [EU]”.[62]

In light of the above, it may be concluded that inspections in antitrust and merger control proceedings aim at ensuring the correct application of the EU rules on competition, thereby increasing the levels of competition law enforcement and furthering economic well-being in the EU, within the meaning of Article 8(2) of the ECHR. In addition, insofar as sanctions for Article 101 and 102 of the TFEU infringements may be considered criminal in nature under the ECHR,[63]  inspections in antitrust proceedings leading to sanctions may also be justified by the Article 8(2) of the ECHR aim of preventing disorder or crime.

iii.     Whether Commission Inspections Are “Necessary in a Democratic Society”

1. Introduction

As a preliminary point, it is necessary to briefly recall the main safeguards that limit the exercise of the Commission’s powers of inspection. In particular, as explained by the EU Courts in Deutsche Bahn, undertakings benefit from five main safeguards in the context of mandatory inspections of business premises in antitrust proceedings.[64]

First, inspection decisions must contain a statement of reasons that complies with the conditions set out in Article 20(4) of Regulation 1/2003 and in the case law of the EU Courts. In particular, such decisions must “specify the subject matter and purpose of the inspection, appoint the date on which it is to begin and indicate the penalties provided for in Articles 23 and 24 and the right to have the decision reviewed by the Court of Justice”.[65] In addition, inspection decisions must establish “the suppositions and presumptions that the Commission wishes to investigate”, as well as a description of the main characteristics of the suspected infringement, including “the market thought to be affected and the nature of the suspected competition restrictions, as well as the sectors covered by the alleged infringement, the supposed degree of involvement of the undertaking concerned, the evidence sought and the matters to which the investigation must relate”.[66]

Second, the Commission is subject to a series of limits whilst conducting inspections. In particular: (i) non-business documents are excluded from the Commission’s investigation; (ii) undertakings that are subject to Commission inspections may receive legal assistance, and are protected by the rules on legal professional privilege and on the privilege against self-incrimination; and (iii) the explanatory note delivered by the Commission to undertakings together with the inspection decision contains information on a series of limits on the Commission’s powers, including, e.g., with regard to the seizure and analysis of electronic data during and after the on-site inspection.[67]

Third, the Commission is unable to conduct an inspection by force or coercion. Indeed, as recalled by the GC, the Commission inspectors “may not obtain access to premises or furniture by force or oblige the staff of the undertaking to give them such access, or carry out searches without the permission of the management of the undertaking”.[68] Additionally, the Commission must grant undertakings time to consult their lawyers before the start and during the conduct of the inspection.[69]

Fourth, in case an undertaking opposes an inspection, there are additional safeguards under the domestic law of the Member State concerned. In such a scenario, the Commission must seek the Member State’s assistance to carry out the inspection, which may require prior judicial authorization by the national courts if this is necessary under national law.[70] In particular, the GC has established that, in case of opposition, “[t]he competent national body, whether judicial or non-judicial, must consider whether the coercive measures envisaged are arbitrary or excessive having regard to the subject-matter of the investigation”.[71] In addition, if they deem it necessary, the national courts reviewing coercive measures may request a preliminary ruling from the CJ and even stay the warrant proceedings until the CJ has issued its judgment.[72]

Fifth, the undertaking subject to an inspection has ex post remedies at its disposal. In particular, it may bring an action for annulment against the inspection decision, enabling the EU Courts to review the legality thereof.[73] It may also apply for interim relief, requesting the suspension of the inspection decision, and/or seek compensation for non-contractual liability.[74]

These safeguards also apply, mutatis mutandis, to mandatory inspections of business premises carried out in merger control proceedings under Article 13(4) of Regulation 139/2004, and to non-mandatory or simple inspections of business premises carried out in both antitrust and merger control proceedings under Articles 20(3) of Regulation 1/2003 and 13(3) of Regulation 139/2004, respectively.

As regards inspections of non-business premises in the context of antitrust proceedings, Article 21 of Regulation 1/2003 establishes some additional safeguards. In particular: (i) there must be a “reasonable suspicion […] that books or other records related to the business and to the subject-matter of the inspection, which may be relevant to prove a serious violation of Article [101] or Article [102] of the Treaty, are being kept” in the non-business premises subject to inspection;[75] (ii) such inspections may only be ordered by Commission decision, which cannot be executed without the prior authorization of the national courts of the relevant Member State;[76] and (iii) the powers of the inspectors are somewhat more limited, i.e., they cannot seal the premises or ask for explanations on facts or documents.[77]

In light of the above, it is necessary to determine whether and to what extent Commission inspections may be deemed necessary in a democratic society, within the meaning of Article 8(2) of the ECHR.

In what follows, we analyze the three sub-conditions set out above in relation to mandatory Commission inspections of business premises in the context of antitrust proceedings, i.e.: (i) the existence of “relevant and sufficient” reasons to justify Commission inspections;[78] (ii) whether the EU regulatory framework and the Commission’s practice on inspections provide “adequate and effective safeguards against abuse”;[79] and (iii) the requirement that such inspections be “in the concrete case […] proportionate to the aim pursued”.[80]

2. The need for relevant and sufficient reasons justifying the inspection

In Canal Plus, the ECtHR concluded that relevant and sufficient reasons existed to justify antitrust inspections in the business premises of the applicant because the judicial warrant authorizing the inspection: (i) established the key facts and elements which constituted the basis of the suspected antitrust infringement; and (ii) empowered the authorities to conduct an inspection and seize relevant documents in order to seek evidence of possible antitrust infringements in the football rights and advertising sectors.[81] In Smirnov, the ECtHR concluded that a search and seizure measure conducted at an individual’s residence was not justified on the basis of relevant and sufficient reasons, in particular, because the search order contained no information on “the ongoing investigation, the purpose of the search or the reasons why it was believed that the search at the applicant’s flat would enable evidence of any offence to be obtained”.[82]

While the determination of whether there are relevant and sufficient reasons to justify a given Commission inspection must be carried out on a case-by-case basis, it can be assumed that, when the Commission complies with the safeguards described in section III.C.iii.1 above, the first sub-condition will be met. This is because, as explained above, pursuant to Article 20(4) of Regulation 1/2003 and the case law of the EU Courts, Commission inspection decisions must set out the subject matter and the purpose of the inspection, as well as a brief description of the main characteristics of the suspected infringement, including, in particular, the potentially affected markets and sectors, the nature of the putative infringement and the degree of alleged involvement by the undertaking subject to inspection. These safeguards regarding the Commission’s duty to state reasons justifying the inspection fulfil –and even go beyond– the basic requirements set out in ECtHR cases such as Canal Plus or Smirnov.[83]

However, it may not be excluded that, in a specific case, a Commission inspection may not comply with these safeguards, in which case the requirement for relevant and sufficient reasons may not be met, depending on the extent to which there has been a significant deviation from the abovementioned standards established under EU law and the ECHR. In particular, there would be a violation of an undertaking’s rights under Article 8 of the ECHR in cases where, in the inspection decision, there is an overall (i.e., in relation to all the products, sectors or territories subject to investigation) or a partial (i.e., in relation to some of the products, sectors or territories subject to investigation) absence of relevant and sufficient reasons justifying the inspection.

In the first scenario, there would be a violation of Article 8 of the ECHR, for instance, if the reasons set out in the inspection decision were excessively succinct, generic or ambiguous, thereby preventing such undertaking from ascertaining the key facts and elements which constitute the basis of the suspected antitrust infringement and from assessing the scope of its duty to cooperate in the context of the inspection. In the second scenario, there would be a violation of Article 8 of the ECHR, for instance, if in the inspection decision the Commission were to order an excessively broad inspection, covering specific products and/or sectors in relation to which the Commission did not have sufficient grounds to suspect an antitrust infringement.[84]

3. The need for adequate and effective safeguards against abuse

In Camenzind, the ECtHR concluded that, in spite of the absence of prior judicial authorization of a search measure, the following safeguards under Swiss law, in particular, were sufficient to protect the applicant against abuse: (i) searches had to be authorized in writing by certain senior civil servants and carried out by specially trained officials; (ii) searches could only be carried out if there was reasonable likelihood that they would lead to the seizure of evidence of an offence; (iii) at the beginning of searches, officials had to prove their identity and provide information on the purpose of the search; and (iv) the person affected by the search had the right to be present during the search, to representation and to receive a copy of both the search order and the record of the search, and had ex post remedies at his disposal.[85]

In Delta Pekárny, which concerned the compatibility with Article 8 of the ECHR of inspections carried out by the Czech national competition authority without prior judicial authorization in an undertaking’s business premises, the ECtHR concluded that “in the absence of a prior judicial authorization, of an effective a posteriori control of the necessity of the contested measure, and of regulation on the ultimate destruction of the obtained copies […] [the existing] procedural safeguards were not sufficient to avoid the risk of abuse of powers by the competition authority”.[86] Such safeguards included, in particular: (i) prior to the inspection, the affected undertaking received a notification indicating the initiation of proceedings for a potential antitrust infringement, as well as an order authorizing the inspection, which stated the names of the inspectors; (ii) the inspection was executed in the presence of representatives of the affected undertaking; and (iii) the authorities did not seize original documents but only copies, and were bound by confidentiality obligations.[87]

The determination of whether Commission inspections provide adequate and effective safeguards against abuse requires a comparison between the safeguards described in section III.C.iii.1 above, on the one hand, and those deemed necessary to prevent abuses in ECtHR cases such as Camenzind or Delta Pekárny, on the other.

In this regard, while in Camenzind the ECtHR took into account that searches had to be authorized in writing and carried out by trained officials, Commission inspections under Article 20(4) of Regulation 1/2003 are also authorized by a written decision adopted by the Director General of DG Competition and carried out by experienced Commission inspectors.[88] Additionally, Commission inspections are carried out with the aim of gathering evidence of potential competition law infringements and require the existence of reasonable grounds to suspect an infringement.[89] Also, in connection with the safeguards set out in Camenzind, at the beginning of inspections, Commission officials not only prove their identity and provide information on the purpose of the search,[90] but additionally they, inter alia: (i) may explain procedural matters, e.g., regarding confidentiality; (ii) may explain the potential consequences of refusing to submit to the inspection; (iii) deliver to the company a copy of the inspection decision, a mandate for the specific inspectors, and an explanatory note on the Commission’s inspection powers; and (iv) may grant the undertaking a brief period of time before starting the inspection, during which it may consult its external counsel.[91] Furthermore, the Commission conducts its inspections of business premises during office hours while representatives of the relevant undertaking are present, and enables the company to consult its external legal counsel during the inspection.^[92] Also, as stated above, the undertaking subject to the inspection has ex post legal remedies at its disposal, including in particular the ability to bring an action for annulment against the inspection decision itself, and to challenge the way in which the inspection has been carried out in an action for annulment against the final Commission decision on substance.

The Commission system of inspections also meets the abovementioned safeguards set out by the ECtHR in Delta Pekárny. In particular, the Commission does not seize original documents, but instead makes copies,[93] inspectors are subject to strict rules on professional secrecy,[94] and the Commission is subject to limitations regarding data retention.[95]

In addition to the safeguards mentioned by the ECtHR in Camenzind and Delta Pekárny, the Commission inspections system provides a number of other guarantees, inter alia: (i) non-business documents are excluded from the Commission investigation;[96] (ii) undertakings benefit from the rules on legal professional privilege;[97] (iii) undertakings benefit from the privilege against self-incrimination;[98] (iv) a copy of any recordings of oral explanations provided by company representatives is made available to the undertaking after the inspection;[99] (v) the undertaking has a period to rectify, amend and/or supplement any explanations provided by non-authorized personnel;[100] (vi) Commission inspectors return to the undertaking any hardware provided by the undertaking at the end of the inspection;[101] (vii) the copy of any data still to be searched at the end of the on-site inspection will be placed in a sealed envelope, and the undertaking may ask for a duplicate of such copy and be present when the Commission continues its inspection at its own premises;[102] (viii) at the end of the inspection, the undertaking receives a data carrier containing a copy of all data gathered by the inspectors during the inspection and added to the Commission’s file;[103] (ix) the undertaking may receive reimbursement for costs incurred in making copies for the Commission;[104] and (x) information obtained by the Commission through an inspection can only be used for the specific purpose for which the information was gathered.[105]

In light of the above, the second sub-condition is likely to be met, as the safeguards surrounding Commission inspections are not only similar to, but in fact go significantly beyond, those singled out by the ECtHR in cases such as Camenzind and Delta Pekárny.

However, two observations must be made. First, it is possible that, in a given case, the Commission may not comply with one or more of the abovementioned safeguards, in which case the inspection could be in breach of Article 8 of the ECHR. However, this should be analyzed under the third sub-condition, which assesses how the inspection has been conducted in practice, including whether it is proportionate and the safeguards have been properly applied “in the concrete case”.[106]

Second, a key aspect which has not been analyzed in this section is whether the ex post judicial review of inspections carried out by the EU Courts is effective and capable of counterbalancing the absence of prior judicial authorization of Commission inspections. This issue is addressed in section III.C.iii.5 below, after analyzing the third sub-condition, as it refers both to the second and to the third sub-conditions, i.e., to the system of judicial review by the EU Courts and to how such review is exercised in specific cases.

4. The need to respect the principle of proportionality

In Niemietz, the ECtHR established that a search of a lawyer’s office was disproportionate, among other reasons, because the terms of the search warrant were particularly broad.[107] In Camenzind, a key reason taken into account by the ECtHR in concluding that a search measure was proportionate was “the limited scope of the search”, in particular, the fact that “the investigating official did no more than check the telephones and television sets; he did not search in any furniture, examine any documents or seize anything”.[108]

In Vinci, the ECtHR concluded that the seizure of a large amount of electronic documents by the French national competition authority, including a number of documents unrelated to the subject matter of the antitrust investigation, as well as documents protected by legal professional privilege, was disproportionate and in breach of Article 8 of the ECHR.[109] The ECtHR noted that, in the absence of a system enabling the applicants to prevent such documents from being seized during the inspection, it was necessary that there be effective ex post control by the judicial authorities.[110] According to the ECtHR, in casu, the reviewing court had limited itself to conducting a formal analysis of the inspections, rather than a concrete analysis of the documents seized by the competition authority in order to determine whether they were unrelated to the subject matter and/or privileged and –if so– to order their restitution.[111] In Janssen Cilag, the ECtHR concluded that, unlike in Vinci, the reviewing court had carried out a proportionality analysis of the antitrust inspection, as required under Article 8 of the ECHR.[112]

The determination of whether Commission inspections are proportionate in a concrete case must, logically, be carried out on a case-by-case basis. In so doing, it is not sufficient to focus on the existence of safeguards under the EU regulatory framework and/or the Commission’s decisional practice, as under the second sub-condition, but rather, it is necessary to “consider the particular circumstances of each case”,[113] and to “check how those safeguards operated in the specific case under examination”[114] and whether they were “complied with in the present case”.[115] In particular, as clarified by the ECtHR, it is necessary to take into account, “inter alia: the severity of the offence in connection with which the search and seizure were effected; the manner and circumstances in which the order was issued, in particular whether any further evidence was available at that time; the content and scope of the order, having particular regard to the nature of the premises searched and the safeguards implemented in order to confine the impact of the measure to reasonable bounds; and the extent of possible repercussions on the reputation of the person affected by the search”.[116]

It can be assumed that, when the Commission complies with the safeguards described in section III.C.iii.1 above, this sub-condition will usually be met. However, it cannot be excluded that, in certain cases, a Commission inspection may be deemed disproportionate.

For instance, there could be a violation of a company’s rights under Article 8 of the ECHR if the Commission and/or the EU Courts, in a specific case, did not comply with one or more of the abovementioned safeguards during the conduct of an inspection, thereby significantly deviating from the standards established under EU law and the ECHR (e.g., if the Commission seized documents protected by legal professional privilege and this was not effectively remedied by the EU Courts).

There could also be a violation if the inspection could be said to have a disproportionate effect on a company’s rights under Article 8 of the ECHR even without deviating from those standards (e.g., if the Commission conducted a large number of and/or particularly intrusive inspections at the premises of an undertaking whose participation in the suspected infringement had been minimal, or at the premises of an undertaking who did not participate in an infringement but was being investigated because it may have information with regard to a possible infringement committed by third parties).[117]

Finally, the refusal by the EU Courts to order the restitution to an investigated undertaking of documents which had been improperly seized by the Commission during an inspection (e.g., documents outside the scope of an inspection), as occurred, for instance, in Nexans or Deutsche Bahn,[118] may be in tension with the proportionality requirements under Article 8 of the ECHR set out in Vinci.

5. The absence of prior judicial authorization and ex post judicial review

As stated above, in assessing compliance of a specific Commission inspection carried out without prior judicial authorization with the second and third sub-conditions, it is necessary to analyze whether the ex post judicial review of the inspection carried out by the EU Courts has been effective and capable of counterbalancing the absence of prior judicial authorization.

In Delta Pekárny and Rozhkov, the ECtHR clarified that “the absence of a prior judicial warrant could, to a certain extent, be counterbalanced by the availability of an ex post facto judicial review”.[119] Such judicial review must, however, be “effective in the specific circumstances of the case”,[120] in particular by “dealing with issues relating to both the legality and proportionality of the measure and the manner in which it ha[s] been implemented”,[121] and covering both “factual and legal elements”,[122] including “the factual elements which have led the authority to carry out the inspection”[123] and the authority’s “power to determine the need for, duration and scope of the inspection”.[124] In addition, the ECtHR stressed that, in cases where “the impugned interference has already occurred […] the domestic remedies should be capable of providing adequate redress”.[125] With regard to this latter aspect, the ECtHR referred to the Canal Plus case, where it was stated that “adequate redress” requires “certainty, in practice, of obtaining effective judicial review of the contested measure, in reasonable time”.[126]

In Delta Pekárny, the ECtHR concluded that, in casu, the ex post judicial review of the mandatory inspection carried out by the Czech national competition authority was insufficient, because the reviewing courts did not review the factual elements which had led the competition authority to carry out such inspection.[127] Thus, the competition authority’s power to determine the need for, duration and scope of the inspection had not been subject to judicial review.[128] In Rozhkov, the ECtHR concluded that, in casu, the ex post judicial review of the search carried out in the applicant’s office was insufficient, because the reviewing court “confined its assessment to the recognition of the investigator’s statutory prerogative to determine whether a search was ‘opportune’ in the light of the interests of the investigation” and did not adequately assess “the factual and legal elements pertaining to the proportionality assessment of the measure”.[129]

While in Deutsche Bahn the CJ concluded, in general terms, that the rights enshrined in “Article 8 of the ECHR, [are] not disregarded by there being no prior judicial authorisation” insofar as “[t]he review provided for by the Treaties means that the European Union courts carry out an in-depth review of the law and of the facts”,[130] in reality, the assessment of whether the judicial review carried out by the EU Courts suffices to counterbalance the absence of prior judicial authorization must be carried out on a case-by-case basis. Indeed, in assessing whether the judicial review by the EU Courts of a specific Commission inspection carried out without prior judicial authorization has been sufficient to render such inspection necessary in a democratic society and thus compatible with Article 8 of the ECHR, it is necessary to ensure that such judicial review, in casu, fully complied with the requirements set out by the ECtHR in Delta Pekárny and Rozhkov.

In this regard, it is submitted that any hypothetical deference by the EU Courts to the Commission in deciding on the need for, and/or on the duration, scope and/or type –simple/non-mandatory or by decision/mandatory– of inspection, as well as any hypothetical failure by the EU Courts to deal with any of the factual or legal challenges raised by an applicant in relation to an inspection decision and/or to the measures adopted during an inspection, could render an inspection carried out without prior judicial authorization contrary to Article 8 of the ECHR. For instance, it is submitted that, if requested to do so, the EU Courts should conduct an in-depth assessment in order to determine not only whether and to what extent an investigatory measure was necessary and justified, but also which specific type of investigatory measure was necessary and justified, in light of the particular features and circumstances of the case, and of the different degrees of intrusiveness of the different types of investigatory measures in the rights protected under Article 8 of the ECHR.

In addition, as stated above, the ex post judicial review of an inspection may only counterbalance the absence of prior judicial authorization if the available domestic remedies are capable of providing adequate redress “in reasonable time”.[131] The EU Courts are required to provide such redress in order to guarantee compliance of Commission inspections carried out without prior judicial authorization with Article 8 of the ECHR. Significant efforts should be made, in particular, in cases where a company requests judicial review of a measure adopted during a Commission inspection before the EU Courts (e.g., the gathering of documents unrelated to the subject matter of the inspection), as such measures may only be challenged in the context of a challenge to the final Commission decision on substance, which may take place several years after the inspection in question.[132]

 

IV. Conclusions

The levels and standards of protection established in the ECHR and the case law of the ECtHR, in particular with regard to Article 8 of the ECHR, are substantively binding upon the Commission, pursuant to Article 6(1) of the TEU in conjunction with Articles 52(3) and 53 of the Charter.

The far-reaching nature of the Commission’s powers of investigation, in particular of its powers of inspection regulated in Articles 20 and 21 of Regulation 1/2003 and in Article 13 of Regulation 139/2004, calls for close scrutiny of the EU regulatory framework and the Commission’s practice on inspections in light of Article 8 of the ECHR. The assessment of whether a specific Commission inspection may be deemed compatible with this provision must be carried out on a case-by-case basis.

While the EU regulatory framework and the Commission’s practice on inspections incorporate a number of safeguards in order to protect the rights of legal and natural persons subject to inspections in competition cases, several circumstances prior to or during the conduct of an inspection could give rise to a violation of Article 8 of the ECHR.

First, a putative failure by the Commission to provide relevant and sufficient reasons justifying an inspection in an inspection decision, be it in relation to all the products, sectors or territories subject to investigation –e.g., if the reasons set out in the inspection decision were excessively succinct, generic or ambiguous– be it in relation to some of the products, sectors or territories subject to investigation –e.g., if the Commission ordered an excessively broad inspection covering specific products and/or sectors in relation to which the Commission did not have sufficient grounds to suspect an antitrust infringement– would give rise to a breach of Article 8 of the ECHR.

Second, a putative failure by the Commission to comply with one or more of the safeguards established in the EU regulatory framework on inspections during the conduct of an inspection –e.g., if the Commission seized documents protected by legal professional privilege and this was not effectively remedied by the EU Courts– could also give rise to a breach of Article 8 of the ECHR.

Third, even in cases where the Commission had complied with such safeguards, there could still be a violation of Article 8 of the ECHR in case the inspection had a disproportionate effect on a company’s rights under Article 8 of the ECHR, e.g., if the Commission conducted a large number of and/or particularly intrusive inspections at the premises of an undertaking whose participation in the suspected infringement had been minimal.

Fourth, the refusal by the EU Courts to order the restitution to an investigated undertaking of documents which had been improperly seized by the Commission during an inspection (e.g., documents outside the scope of an inspection) may be in tension with the proportionality requirements under Article 8 of the ECHR set out in Vinci.

Fifth, the absence of prior judicial authorization of a Commission inspection would be incompatible with Article 8 of the ECHR, in particular, in the following hypothetical scenarios: (i) if, when exercising ex post judicial review of a given inspection, the EU Courts were to grant the Commission deference in deciding on the need for, and/or on the duration, scope and/or type –simple/non-mandatory or by decision/mandatory– of inspection, or if they were to fail to deal with any of the factual or legal challenges raised by an applicant in relation to an inspection decision and/or to the measures adopted during an inspection; and (ii) if ex post judicial review of a given inspection were not to be exercised in reasonable time.

Although so far the EU Courts have been effective in addressing some of the potential violations of Article 8 of the ECHR identified above, in particular those relating to the existence of a deficient statement of reasons in the inspection decision, EU accession to the ECHR pursuant to Article 6(2) of the TEU remains critical in order to guarantee comprehensive and coherent fundamental rights protection for undertakings throughout the EU.

 

***

 

[1] Legal Secretary, Court of Justice of the European Union. Email: bhollesdepeyer@llm17.law.harvard.edu. The views expressed in this article are the author’s own.

[2] Pursuant to Article 6(2) TEU, “[t]he Union shall accede to the [ECHR]. Such accession shall not affect the Union’s competences as defined in the Treaties”. This provision, introduced in 2009 through the Treaty of Lisbon, granted the EU the power and imposed upon it the obligation to accede to the ECHR, subject to the limits and conditions established, notably, in Article 6(2) of the TEU, Protocol (No. 8) to the TEU, Declaration (No. 2) on Article 6(2) of the TEU, and in Article 218 of the TFEU. In April 2013, after almost three years of negotiations, a draft agreement for the accession of the EU to the ECHR was concluded. The Commission then requested that the CJ assess the compatibility of the draft accession agreement with the EU Treaties, pursuant to Article 218(11) TFEU. In December 2014, the CJ issued its Opinion 2/13, in which it concluded that the draft accession agreement was incompatible with Article 6(2) TEU and Protocol (No. 8) to the TEU (see Opinion 2/13 of the Court of 18 December 2014, EU:C:2014:2454). As a result, the timeline for EU accession to the ECHR is currently uncertain.

[3] Although the founding treaties of the EU were silent on the issue of the protection of fundamental rights, it wasn’t long before the EU Courts began to develop an EU fundamental rights doctrine and to progressively incorporate the ECHR into the EU legal order. In a series of judgments issued from the late 1960s onwards, the EU Courts established that fundamental rights form a part of the general principles of EU law and that the ECHR has “particular” or “special” significance when defining and interpreting such general principles. In Stauder, the CJ established, for the first time, that “fundamental human rights [are] enshrined in the general principles of Community law and protected by the Court” (see judgment of 12 November 1969, Stauder v Stadt Ulm, C-29/69, EU:C:1969:57, para. 7). In Internationale Handelsgesellschaft, the CJ confirmed that “respect for fundamental rights forms an integral part of the general principles of law protected by the Court of Justice” and stated that the “protection of such rights [is] inspired by the constitutional traditions common to the Member States” (see judgment of 17 December 1970, Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel, C-11/70, EU:C:1970:114, para. 4). In Nold, the CJ set out the different legal sources from which the EU Courts could draw inspiration when safeguarding fundamental rights as general principles of EU law. These included, in particular, the “constitutional traditions common to the Member States” as well as “international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories” (see judgment of 14 May 1974, Nold KG v Commission, C-4/73, EU:C:1974:51, para. 13). In Rutili, the CJ made its first explicit reference to the ECHR (see judgment of 28 October 1975, Rutili v Ministre de l’intérieur, C-36/75, EU:C:1975:137, para. 32; see also, judgment of 13 December 1979, Hauer v Land Rheinland-Pfalz, C-44/79, EU:C:1979:290, para. 15). In a number of cases following Rutili, the CJ stressed that when drawing inspiration from international treaties, the ECHR is of “particular” or “special” significance (see e.g., judgment of 21 September 1989, Hoechst v Commission, C-46/87, EU:C:1989:337, para. 13, and judgment of 18 June 1991, ERT v DEP, C-260/89, EU:C:1991:254, para. 41). In 1992, the Treaty of Maastricht codified the EU’s obligation to respect fundamental rights as general principles of EU law in Article F(2) TEU –today Article 6(3) TEU, according to which “[f]undamental rights, as guaranteed by the [ECHR] and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law”.

[4] See e.g., judgment of 16 June 2005, Pupino, C-105/03, EU:C:2005:386, para. 58.

[5] The Charter was adopted in the year 2000 by the European Parliament, the Council and the Commission. As stated in its preamble, the aim of the Charter was to strengthen the protection of fundamental rights, and to reaffirm the different rights as recognized, notably, in the ECHR, the case law of the EU Courts and the ECtHR, the EU and Council of Europe social charters, and in the constitutional traditions and international obligations common to the EU Member States. Prior to the Treaty of Lisbon, which entered into force in 2009, the Charter was not legally binding, but instead constituted a mere “solemn proclamation”. The Treaty of Lisbon made the Charter legally binding by establishing, in Article 6(1) TEU, that the Charter has “the same legal value as the Treaties”.

[6] Article 7 of the Charter, which establishes the individual right to respect for “private and family life, home and communications”, is functionally equivalent to Article 8 of the ECHR (in this regard, see judgment of 18 June 2015, Deutsche Bahn and Others v Commission, C-583/13 P, EU:C:2015:404, para. 19, and Opinion of Advocate General Wahl delivered on 12 February 2015 in Case C‑583/13 P Deutsche Bahn and Others v Commission, EU:C:2015:92, para. 41).

[7] See e.g., Case of Rozhkov v. Russia (No. 2), Application 38898/04, 31 January 2017, paras. 109-128.

[8] See e.g., Case of Cremieux v. France, Application 11471/85, 25 February 1993, para. 38.

[9] See e.g., Case of Niemietz v. Germany, Application 13710/88, 16 December 1992, para. 31.

[10] See e.g., Case of Camenzind v. Switzerland, Application 136/1996/755/954, 16 December 1997, para. 35.

[11] See e.g., Case of Wieser and Bicos Beteiligungen Gmbh v. Austria, Application 74336/01, 16 October 2007, paras. 45-46.

[12] See e.g., Case of Chappell v. the United Kingdom, Application 10461/83, 30 March 1989, para. 51.

[13] See e.g., Case of Miailhe v. France (No. 1), Application 12661/87, 25 February 1993, para. 28.

[14] See e.g., Case of Heino v. Finland, Application 56720/09, 15 February 2011, para. 34.

[15] See e.g., Case of Iliya Stefanov v. Bulgaria, Application 65755/01, 22 May 2008, para. 34.

[16] See e.g., Case of Roemen and Schmit v. Luxembourg, Application 51772/99, 25 February 2003, para. 72.

[17] See e.g., Case of Niemietz v. Germany, Application 13710/88, 16 December 1992, para. 31.

[18] See e.g., Case of Société Colas Est and Others v. France, Application 37971/97, 16 April 2002, para. 41.

[19] See e.g., Case of Delta Pekárny A.S. v. Czech Republic, Application 97/11, 2 October 2014, paras. 77-79.

[20] See e.g., Case of Varga v. Romania, Application 73957/01, 1 April 2008, para. 68.

[21] See e.g., Case of Harju v. Finland, Application 56716/09, 15 February 2011, paras. 36-37.

[22] See e.g., Case of Robathin v. Austria, Application 30457/06, 3 July 2012, para. 40.

[23] See e.g., Case of McLeod v. the United Kingdom, Application 72/1997/856/1065, 23 September 1998, para. 44.

[24] See e.g., Case of Harju v. Finland, Application 56716/09, 15 February 2011, para. 35.

[25] See e.g., Case of Chappell v. the United Kingdom, Application 10461/83, 30 March 1989, para. 56.

[26] See e.g., Case of Harju v. Finland, Application 56716/09, 15 February 2011, para. 35.

[27] See e.g., Case of Bernh Larsen Holding AS and Others v. Norway, Application 24117/08, 14 March 2013, para. 123.

[28] See e.g., Case of McLeod v. the United Kingdom, Application 72/1997/856/1065, 23 September 1998, para. 41.

[29] See e.g., Case of Harju v. Finland, Application 56716/09, 15 February 2011, para. 35.

[30] See e.g., Case of Harju v. Finland, Application 56716/09, 15 February 2011, para. 39.

[31] See e.g., Case of Roemen and Schmit v. Luxembourg, Application 51772/99, 25 February 2003, para. 66.

[32] See e.g., Case of Camenzind v. Switzerland, Application 136/1996/755/954, 16 December 1997, para. 46. For a case where this was assessed under the fourth sub-condition (i.e., compatibility with the rule of law) within the first condition (i.e., assessment of whether the measure is in accordance with the law), see e.g., Case of Bože v. Latvia, Application 40927/05, 18 May 2017, paras. 74-83.

[33] Article 8(2) of the ECHR.

[34] See e.g., Case of Aliyev v. Azerbaijan, Application 68762/14 and 71200/14, 20 September 2018, para. 182.

[35] See e.g., Case of Xavier da Silveira v. France, Application 43757/05, 21 January 2010, para. 33.

[36] See e.g., Case of Chappell v. the United Kingdom, Application 10461/83, 30 March 1989, para. 51.

[37] See e.g., Case of  Funke v. France, Application 10828/84, 25 February 1993, para. 52.

[38] See e.g., Case of Niemietz v. Germany, Application 13710/88, 16 December 1992, para. 36.

[39] See e.g., Case of Tamosius v. the United Kingdom, Application 62002/00, 19 September 2002, p. 9.

[40] See e.g., Case of Smirnov v. Russia, Application 71362/01, 7 June 2007, para. 40.

[41] See e.g., Case of Delta Pekárny A.S. v. Czech Republic, Application 97/11, 2 October 2014, para. 82.

[42] See e.g., Case of Camenzind v. Switzerland, Application 136/1996/755/954, 16 December 1997, para. 44.

[43] See e.g., Case of Delta Pekárny A.S. v. Czech Republic, Application 97/11, 2 October 2014, para. 82.

[44] See e.g., Case of Société Canal Plus and Others v. France, Application 29408/08, 21 December 2010, para. 54.

[45] See e.g., Case of Société Canal Plus and Others v. France, Application 29408/08, 21 December 2010, para. 54.

[46] See e.g., Case of Rozhkov v. Russia (No. 2), Application 38898/04, 31 January 2017, para. 118.

[47] See e.g., Case of Smirnov v. Russia, Application 71362/01, 7 June 2007, para. 44.

[48] See e.g., Case of Camenzind v. Switzerland, Application 136/1996/755/954, 16 December 1997, para. 45, and Case of Brazzi v. Italy, Application 57278/11, 27 September 2018, para. 41.

[49] See e.g., Case of Rozhkov v. Russia (No. 2), Application 38898/04, 31 January 2017, para. 122.

[50] See e.g., Case of Smirnov v. Russia, Application 71362/01, 7 June 2007, para. 44.

[51] Article 20(2)(a) of Regulation 1/2003.

[52] Article 21(1) of Regulation 1/2003.

[53] See Case of Société Colas Est and Others v. France, Application 37971/97, 16 April 2002, para. 42.

[54] See Case of Société Canal Plus and Others v. France, Application 29408/08, 21 December 2010, para. 52.

[55] See Case of Delta Pekárny A.S. v. Czech Republic, Application 97/11, 2 October 2014, para. 78.

[56] See Case of Vinci Construction and GTM Génie Civil et Services v. France, Application 63629/10 and 60567/10, 2 April 2015, para. 70, and Case of Janssen Cilag S.A.S. v. France, Application 33931/12, 21 March 2017, para. 18.

[57] See judgment of 18 June 2015, Deutsche Bahn and Others v Commission, C-583/13 P, EU:C:2015:404, para. 35.

[58] See Opinion of Advocate General Mischo delivered on 20 September 2001 in Case C‑94/00 Roquette Frères, EU:C:2001:472, para. 36.

[59] See Case of Société Colas Est and Others v. France, Application 37971/97, 16 April 2002, para. 41, extending the protection of Article 8 of the ECHR to the business premises of legal persons.

[60] See e.g., Case of Société Colas Est and Others v. France, Application 37971/97, 16 April 2002, para. 44, Case of Société Canal Plus and Others v. France, Application 29408/08, 21 December 2010, para. 53, Case of Vinci Construction and GTM Génie Civil et Services v. France, Application 63629/10 and 60567/10, 2 April 2015, para. 72, and Case of Delta Pekárny A.S. v. Czech Republic, Application 97/11, 2 October 2014, para. 81.

[61] See judgment of 26 June 1980, National Panasonic v Commission, C-136/79, EU:C:1980:169, para. 20.

[62] See judgment of 22 October 2002, Roquette Frères, C‑94/00, EU:C:2002:603, para. 42.

[63] Although fines for Article 101 and/or 102 of the TFEU infringements are not “criminal” under EU law, as confirmed by Article 23(5) of Regulation 1/2003 as well as by the EU Courts (see e.g., judgment of 13 July 2011, Schindler Holding and Others v Commission, T-138/07, EU:T:2011:362, para. 53), there is a broad consensus today that they do qualify as “criminal” under the ECHR. This conclusion is consistent with the case law of the ECtHR, and has been confirmed by the EU Courts as well as by the European Free Trade Association Court. In this regard, see e.g., Case of A. Menarini Diagnostics S.R.L. v. Italy, Application 43509/08, 27 September 2011, para. 42, judgment of 16 December 2015, Martinair Holland v Commission, T-67/11, EU:T:2015:984, para. 29, and judgment of 18 April 2012, Posten Norge AS v EFTA Surveillance Authority, E-15/10, paras. 87 and 88.

[64] See judgment of 6 September 2013, Deutsche Bahn and Others v Commission, T-289/11, EU:T:2013:404, paras. 74-100, Opinion of Advocate General Wahl delivered on 12 February 2015 in Case C‑583/13 P Deutsche Bahn and Others v Commission, EU:C:2015:92, para. 26, and judgment of 18 June 2015, Deutsche Bahn and Others v Commission, C‑583/13 P, EU:C:2015:404, paras. 28-29.

[65] Article 20(4) of Regulation 1/2003.

[66] See judgment of 6 September 2013, Deutsche Bahn and Others v Commission, T-289/11, EU:T:2013:404, paras. 75 and 77.

[67] See judgment of 6 September 2013, Deutsche Bahn and Others v Commission, T-289/11, EU:T:2013:404, paras. 79 to 84.

[68] See judgment of 6 September 2013, Deutsche Bahn and Others v Commission, T-289/11, EU:T:2013:404, para. 86.

[69] See judgment of 6 September 2013, Deutsche Bahn and Others v Commission, T-289/11, EU:T:2013:404, para. 89.

[70] Article 20(6) to (8) of Regulation 1/2003.

[71] See judgment of 6 September 2013, Deutsche Bahn and Others v Commission, T-289/11, EU:T:2013:404, para. 93.

[72] See judgment of 6 September 2013, Deutsche Bahn and Others v Commission, T-289/11, EU:T:2013:404, para. 94.

[73] See judgment of 6 September 2013, Deutsche Bahn and Others v Commission, T-289/11, EU:T:2013:404, para. 95.

[74] See judgment of 6 September 2013, Deutsche Bahn and Others v Commission, T-289/11, EU:T:2013:404, paras. 98 and 99.

[75] Article 21(1) of Regulation 1/2003.

[76] Article 21(1) to (3) of Regulation 1/2003.

[77] Article 21(4) of Regulation 1/2003.

[78] See e.g., Case of Société Canal Plus and Others v. France, Application 29408/08, 21 December 2010, para. 54.

[79] See e.g., Case of Smirnov v. Russia, Application 71362/01, 7 June 2007, para. 44.

[80] See e.g., Case of Smirnov v. Russia, Application 71362/01, 7 June 2007, para. 44.

[81] See Case of Société Canal Plus and Others v. France, Application 29408/08, 21 December 2010, para. 55.

[82] See Case of Smirnov v. Russia, Application 71362/01, 7 June 2007, para. 47.

[83] See section III.C.iii.5 below as regards the ex post judicial review of inspections carried out by the EU Courts.

[84] In this regard, see e.g., judgment of 14 November 2012, Nexans France and Nexans v Commission, T-135/09, EU:T:2012:596, paras. 46-94 and 95-101, and judgment of 25 June 2014, Nexans and Nexans France v Commission, C-37/13 P, EU:C:2014:2030, paras. 21-41.

[85] See Case of Camenzind v. Switzerland, Application 136/1996/755/954, 16 December 1997, para. 46.

[86] See Case of Delta Pekárny A.S. v. Czech Republic, Application 97/11, 2 October 2014, para. 92.

[87] See Case of Delta Pekárny A.S. v. Czech Republic, Application 97/11, 2 October 2014, paras. 85 and 92.

[88] DG Competition Antitrust Manual of Procedures, November 2019, Module 1, paras. 25 and 40.

[89] In this regard, see e.g., judgment of 14 November 2012, Nexans France and Nexans v Commission, T-135/09, EU:T:2012:596, paras. 60-94.

[90] Explanatory note on Commission inspections pursuant to Article 20(4) of Council Regulation No 1/2003, 11 September 2015, paras. 1 and 2.

[91] Explanatory note on Commission inspections pursuant to Article 20(4) of Council Regulation No 1/2003, 11 September 2015, paras. 1-3 and 6, and Ortiz Blanco, L., “EU Competition Procedure”, Third Edition, 2013, Oxford University Press, pp. 365-371.

[92] Explanatory note on Commission inspections pursuant to Article 20(4) of Council Regulation No 1/2003, 11 September 2015, para. 6, and Ortiz Blanco, L., “EU Competition Procedure”, Third Edition, 2013, Oxford University Press, p. 365.

[93] Ortiz Blanco, L., “EU Competition Procedure”, Third Edition, 2013, Oxford University Press, p. 352.

[94] Article 28(2) of Regulation 1/2003.

[95] Explanatory note on Commission inspections pursuant to Article 20(4) of Council Regulation No 1/2003, 11 September 2015, para. 13.

[96] See judgment of 6 September 2013, Deutsche Bahn and Others v Commission, T-289/11, EU:T:2013:404, para. 80.

[97] See judgment of 6 September 2013, Deutsche Bahn and Others v Commission, T-289/11, EU:T:2013:404, para. 81.

[98] See judgment of 6 September 2013, Deutsche Bahn and Others v Commission, T-289/11, EU:T:2013:404, para. 82.

[99] Explanatory note on Commission inspections pursuant to Article 20(4) of Council Regulation No 1/2003, 11 September 2015, para. 7.

[100] Explanatory note on Commission inspections pursuant to Article 20(4) of Council Regulation No 1/2003, 11 September 2015, para. 8.

[101] Explanatory note on Commission inspections pursuant to Article 20(4) of Council Regulation No 1/2003, 11 September 2015, para. 13.

[102] Explanatory note on Commission inspections pursuant to Article 20(4) of Council Regulation No 1/2003, 11 September 2015, para. 14.

[103] Explanatory note on Commission inspections pursuant to Article 20(4) of Council Regulation No 1/2003, 11 September 2015, para. 15.

[104] Explanatory note on Commission inspections pursuant to Article 20(4) of Council Regulation No 1/2003, 11 September 2015, para. 17.

[105] Article 28(1) of Regulation 1/2003.

[106] See Case of Smirnov v. Russia, Application 71362/01, 7 June 2007, para. 44.

[107] See Case of Niemietz v. Germany, Application 13710/88, 16 December 1992, para. 37.

[108] See Case of Camenzind v. Switzerland, Application 136/1996/755/954, 16 December 1997, paras. 46-47.

[109] See Case of Vinci Construction and GTM Génie Civil et Services v. France, Application 63629/10 and 60567/10, 2 April 2015, paras. 80-81.

[110] See Case of Vinci Construction and GTM Génie Civil et Services v. France, Application 63629/10 and 60567/10, 2 April 2015, para. 78.

[111] See Case of Vinci Construction and GTM Génie Civil et Services v. France, Application 63629/10 and 60567/10, 2 April 2015, para. 79.

[112] See Case of Janssen Cilag S.A.S. v. France, Application 33931/12, 21 March 2017, paras. 22-23.

[113] See Case of Smirnov v. Russia, Application 71362/01, 7 June 2007, para. 44.

[114] See Case of Iliya Stefanov v. Bulgaria, Application 65755/01, 22 May 2008, para. 38.

[115] See Case of Wieser and Bicos Beteiligungen Gmbh v. Austria, Application 74336/01, 16 October 2007, para. 61.

[116] See Case of Erduran and Em Export Diş Tic. A.Ş. v. Turkey, Application 25707/05 and 28614/06, 20 November 2018, para. 87.

[117] In the past, the GC has established that “observance of the principle of proportionality involves establishing that the inspection envisaged does not constitute, in relation to the aims thereby pursued, a disproportionate and intolerable interference” (see judgment of 8 March 2007, France Télécom v Commission, T-339/04, EU:T:2007:80, para. 118). Similarly, with regard to requests for information made under Article 18(3) of Regulation 1/2003, the GC has stated that, irrespective of whether the specific safeguards/conditions set out in the applicable legislation have been complied with, “requests for information made by the Commission to an undertaking must comply with the principle of proportionality and the obligation imposed on an undertaking to supply information should not be a burden on that undertaking which is disproportionate to the needs of the inquiry” (see judgment of 22 March 2012, Slovak Telekom v Commission, T-458/09, EU:T:2012:145, para. 81).

[118] See judgment of 14 November 2012, Nexans France and Nexans v Commission, T-135/09, EU:T:2012:596, paras. 25, 135 and 136, and judgment of 6 September 2013, Deutsche Bahn and Others v Commission, T-289/11, EU:T:2013:404, para. 227.

[119] See Case of Rozhkov v. Russia (No. 2), Application 38898/04, 31 January 2017, para. 122.

[120] See Case of Delta Pekárny A.S. v. Czech Republic, Application 97/11, 2 October 2014, para. 87.

[121] See Case of Rozhkov v. Russia (No. 2), Application 38898/04, 31 January 2017, para. 122.

[122] See Case of Rozhkov v. Russia (No. 2), Application 38898/04, 31 January 2017, para. 123.

[123] See Case of Delta Pekárny A.S. v. Czech Republic, Application 97/11, 2 October 2014, para. 91.

[124] See Case of Delta Pekárny A.S. v. Czech Republic, Application 97/11, 2 October 2014, para. 91. See also Case of Smirnov v. Russia, Application 71362/01, 7 June 2007, para. 45, stating that the reviewing court must be able to review “both the lawfulness of, and justification for” the search order.

[125] See e.g., Case of Rozhkov v. Russia (No. 2), Application 38898/04, 31 January 2017, para. 122, and Case of Delta Pekárny A.S. v. Czech Republic, Application 97/11, 2 October 2014, para. 87.

[126] See Case of Société Canal Plus and Others v. France, Application 29408/08, 21 December 2010, para. 40.  In Canal Plus, the ECtHR stated that a remedies system whereby a company subject to a search and seizure measure could only obtain redress by challenging the final decision on substance of the competition authority did not provide “adequate redress” within the meaning of Article 6(1) ECHR. This is because the possibility of obtaining redress in such circumstances was deemed uncertain, insofar as it required a prior final decision on substance as well as an appeal against such decision, and because the final decision on substance could be adopted several years after the search and seizure had taken place (in Canal Plus, the challenged inspections took place in 2005, and in March 2011, when the ECtHR judgment was issued, the competition authority was yet to adopt a final decision on substance). In this regard, see Case of Société Canal Plus and Others v. France, Application 29408/08, 21 December 2010, para. 40. See also, Case of Compagnie des Gaz de Petrole Primagaz v. France, Application 29613/08, 21 December 2010, para. 28.

[127] See Case of Delta Pekárny A.S. v. Czech Republic, Application 97/11, 2 October 2014, para. 91.

[128] See Case of Delta Pekárny A.S. v. Czech Republic, Application 97/11, 2 October 2014, para. 91.

[129] See Case of Rozhkov v. Russia (No. 2), Application 38898/04, 31 January 2017, para. 123.

[130] See judgment of 18 June 2015, Deutsche Bahn and Others v Commission, C‑583/13 P, EU:C:2015:404, paras. 34-35.

[131] See Case of Société Canal Plus and Others v. France, Application 29408/08, 21 December 2010, para. 40.

[132] See the admissibility criteria for actions for annulment under Article 263 TFEU, as set out in the GC judgment in Nexans (see judgment of 14 November 2012, Nexans France and Nexans v Commission, T-135/09, EU:T:2012:596, para. 132). In this case, the GC explained that an action for annulment under Article 263 TFEU against acts adopted during a Commission inspection –in particular, against the decision to make copy-images of several computer files and a hard drive, and to interview a specific individual– was inadmissible and that: “The legality of those acts could only be examined […] in the context of an action challenging the final decision adopted by the Commission under Article [101 TFEU]. Review by the Courts of the way in which an inspection was conducted falls within the scope of an action for the annulment of the final decision adopted by the Commission under that provision”. This does not apply when the Commission seizes documents allegedly covered by legal professional privilege, which does constitute a challengeable act under Article 263 TFEU. In this regard, see judgment of 17 September 2007, Akzo Nobel Chemicals and Akcros Chemicals v Commission, T-125/03, EU:T:2007:287, para. 48 (“It follows that the Commission’s decision rejecting a request for protection of a specific document under LPP – and ordering, where appropriate, the production of the document in question – brings to an end a special procedure distinct from that enabling the Commission to rule on the existence of an infringement of the competition rules and thus constitutes an act capable of being challenged by an action for annulment, coupled, if need be, with a request for interim relief, seeking, inter alia, to suspend its operation until the Court has ruled on the action in the main proceedings”).