Digital evidence gathering during inspections – will the ECtHR and the EUCJ meet halfway?
The European Court of Human Rights (ECtHR) is rapidly moving into competition law domains that used to belong to the Court of Justice of the European Union (EUCJ). Recently in Delta Pekárny, the ECtHR quashed the result of national procedures relating to on-site inspections. This in particular raises questions about due process and digital evidence gathering during such searches. Many decisions on inspections are still adopted without prior judicial authorization. Extensive digital copying has become a matter of routine for many competition authorities. Companies subject to inspections have gone to court repeatedly in order to obtain up-front judicial control of specific measures such as copying and mirroring of hard drives and servers. The ECtHR has now, again, underlined the need for an effective control afterwards of the necessity of the measures, and rules to rectify measures that are subsequently found to be unlawful. Along the way, the ECtHR has made observations on the rules on investigations under Regulation 1/2003, case-law of the EUCJ and a European Competition Network Report on the rules on investigation prevailing in the Member States.
Following the rapid emergence of several cases from the ECtHR on dawn-raid like searches such as Robathin and Bernh Larsen Holding, a more nuanced and intense review can be envisaged to determine whether the Commission’s and Member States investigations procedures violate Article 8 of the European Convention of Human Rights and Article 7 of the Charter of Fundamental Rights of the European Union. Those provisions both address the right to respect for private and family life, home and communications.
Meanwhile, we are awaiting the EUCJ’s adjudication on the appeal of the General Court’s judgment in Deutsche Bahn, a case which concerns a series of subsequent dawn-raids. Can we expect to see a clash or an alignment?
Ingeborg Simonsson, Judge Stockholm City Court, Associate Professor Stockholm University