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The Admissibility Benchmark for the Judicial Review of Dawn Raids in Europe. Has Recent Case Law Shifted the Boundaries?

 |  June 21, 2024

By: Angelos Vlazakis (Norton Rose Fulbright)

Unannounced inspections by competition authorities, commonly known as “dawn raids,” are undeniably one of the most effective tools for gathering evidence and enforcing competition rules. However, these inspections often test (and sometimes exceed) the boundaries of companies’ procedural rights.

EU Courts are increasingly attentive to companies’ rights of defense, providing more opportunities to challenge dawn raid decisions and the conduct of officials during these inspections. As dawn raids in Europe become more frequent, companies must stay informed about developments in this area to respond effectively if targeted.

Evolution of EU Case Law on Dawn Raid Challenges:

The Court of Justice of the European Union (CJEU) and national courts have traditionally applied narrow admissibility principles for challenges related to measures taken during or after dawn raids. For instance, in the Nexans and Prysmian cases, the General Court of the European Union (GC) ruled that actions to annul implementation measures of an inspection decision were generally inadmissible, as these measures were considered intermediate steps within the overall inspection decision.

Recently, however, there has been some clarification and potential broadening of the ability to challenge these implementation measures. In the French Supermarkets cases, the CJEU outlined six remedies against the conduct of a dawn raid, including annulment actions against challengeable acts adopted by the Commission following the inspection decision. Examples of such intermediate steps include measures by the European Commission that interfere with the right to privacy and the right not to produce legally privileged evidence.

Additionally, the European Court of Human Rights (ECtHR) has consistently required effective ex post facto review of national competition authorities’ actions, including many implementation measures.

In a surprising development, the Council of State (CoS) in Greece, drawing on ECtHR jurisprudence, considered admissible an application to annul the Hellenic Competition Commission’s refusal to unseal documents collected during unannounced inspections. These documents were outside the scope of the investigation related to the dawn raid, and the refusal to unseal them had “independent legal effects,” constituting a critical step of the administrative procedure despite being an implementation measure…