Dawn raids of the European Commission: limits to document seizure
Regulation 1/2003 confers wide powers of inspection on the European Commission in order to unveil suspected competition infringements. Broad as they are, such powers are not unlimited. The EU Courts have consistently held that the undertakings’ rights of defence shall also be protected and, therefore, a balance must be struck between inspection powers and fundamental rights in this field.
As regards, in particular, the power to examine and seize documents, the case-law sets two specific limits. The Commission cannot gather documents that are either (i) protected by the legal professional privilege; or (ii) unrelated to the subject-matter of the investigation. This article argues that, while the boundaries of legal professional privilege (LPP) at EU level are now clear, this is not the case of documents unrelated to the subject-matter of the investigation, particularly when such documents are electronically stored. Indeed, the Commission believes that it is entitled to take copy-images of hard disks and examine such copy at its premises in the presence of the undertakings’ representatives.
Two recent cases have dealt with this issue, but the General Court has avoided giving a comprehensive response by embracing the Commission’s inadmissibility claims. The question seems likely, therefore, to be raised again in future appeals.
KeywordsInspections Document seizure Fundamental rights
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