CRH Plc v Competition and Consumer Protection Commission

• Jurisdiction: Ireland
• Judge: Re,Mr Justice Max Barrett
• Judgment Date: 05 April 2016
• Neutral Citation: [2016] IEHC 162
• Docket Number: Record No. 2015/9210P
• Court: High Court
• Date: 05 April 2016

[2016] IEHC 162

THE HIGH COURT

Barrett J.

Record No. 2015/9210P

BETWEEN:-

CRH PLC, IRISH CEMENT LIMITED

AND

SEAMUS LYNCH

Plaintiffs

– AND –

THE COMPETITION AND CONSUMER PROTECTION COMMISSION

Defendant

Competition & Monopolies – The Competition Act 2002 – S.37 of the Competition and Consumer Protection Act 2014 – S. 3 of the European Convention on Human Rights Act 2003 (ECHR Act) – EU Charter of Fundamental Rights – Art. 40.3 of the Constitution – Data Protection Acts 1988 and 2003 – Matters under investigation – Scope of search warrant – Breach of right of privacy – Contra legem – Terra Incognita

Facts: The plaintiffs sought a declaration that the defendant had acted ultra vires and contrary to s. 37 of the Competition and Consumer Protection Act 2014 in seizing various records from the premises of the first named plaintiff/company unrelated to its business activity at a dawn raid conducted at the said premises pursuant to a search warrant. The plaintiffs also sought certain other declarations to the effect that the defendant had breached their respective rights under the ECHR Act, Constitution of Ireland, Data Protection Acts 1988 & 2003, and EU Charter of Fundamental Rights. The plaintiffs also sought an injunction for restraining the defendant from accessing, reviewing and or making use of the non-relevant records.

Mr. Justice Max Barrett granted a declaration to the effect that the defendant had contravened s. 37 of the Act of 2014 with the seizure of the unrelated records. The Court also granted the desired injunction sought by the plaintiffs. The Court, however, refused to grant declarations to the effect that the defendant had acted in breach of the ECHR Act, art. 40.3 of the Constitution, EU Charter of Fundamental Rights and Data Protection Acts 1988 and 2003. The Court observed that wide powers of search and seizure conferred under s. 37 of the Act of 2014 was limited to the extent of obtaining information for the matter under investigation, but not otherwise. The Court found that since the search warrant in the present case was issued for the investigation of violations of certain competition laws by the plaintiffs, the defendant had no entitlement to the mailbox data of the second named plaintiff for the period he held intra-group roles that were unconnected with the business of the first named plaintiff/company. The Court observed that since the Act of 2014 did not prescribe any mode of disposal of the non-relevant items, the legitimacy of the aim of the defendant was further defeated by virtue of the doctrine of Terra Incognita. The Court held that since s. 37 of the Act of 2014 did not incorporate European Union law, being the primary condition for the enforceability of the EU Charter of Fundamental Rights, the plaintiffs could not avail any remedy under that provision. The Court found that there would not be any breach of the Data Protection Acts as the plaintiffs had released the alleged disputed records with consent to the defendant. The Court opined that there would not be any breach of right of privacy under art. 40.3 of the Constitution and s. 3 of the ECHR Act 2003 unless the defendant engaged in the process of screening and selecting the data as per the search warrant.

JUDGMENT of Mr Justice Max Barrett delivered on 5th April, 2016.

Part 1

Overview

1 It is helpful to begin with a simple example of the nature of the issue presenting. Suppose there are three filing cabinets sitting in a room on private premises. A search warrant has the effect that State officers may enter those premises and take the contents of the middle cabinet; there may also be some papers in the other two cabinets to which they are entitled. The officers enter the premises and seize the entire contents of all three cabinets, despite being told at the moment of seizure that the second and third cabinets contain much to which they are not entitled. The owner of the premises later writes to the State officers and says, “You are entitled to the contents of the middle cabinet but I want those contents of the other cabinets to which you are not entitled returned to me. Some of the material in those other cabinets does not even belong to me.” The State officers say “The effect of our warrant is such that we may be entitled to some of the contents of the other cabinets. So we will go through all the material in those other cabinets and let you know what it is that we are entitled to.” The owner of the private premises where the cabinets are located suggests a process whereby the contents of the other cabinets would be sifted to ensure that the State officers get access to the documents to which they are entitled, but do not get access to those documents which they never had any entitlement to take away. “To act otherwise,” he maintains, “would, amongst other matters, involve an unwarranted intrusion upon the right of privacy”. Though the owner is open to any reasonable solution, none can be agreed. So the parties come to court to see what the law requires. That, in a nutshell, and stripped of the particularity of the facts now presenting, is the nature of the dispute presenting in these proceedings.

Part 2

The Facts

2 Last May a “dawn raid” was done at the premises of Irish Cement Limited at Platin, County Louth, by authorised officers of the Commission, acting pursuant to a search warrant. In the course of that raid, the officers took a copy of the entirety of the e-mail box of Mr Lynch, a senior executive within the CRH group, of which Irish Cement is part. It appears to the court, on the balance of probabilities – to the extent that this continues to be contested by the Commission, if at all – that some of the e-mails and attachments in that e-mail box almost certainly were not caught by the terms of the warrant. The central issue now arising between the parties is what is to be done about those e-mails and attachments which it is claimed that the Commission does not lawfully have in its possession.

3 A more detailed chronology of the “dawn raid”, with some limited court narrative, is set out in the Appendix hereto, which forms part of this judgment. However, the foregoing suffices by way of an initial summary of the background facts. Such other facts as are relevant are introduced by the court in the course of the judgment that follows.

Part 3

The Parties

4 CRH plc is a publicly listed international building materials group operating in countries across the Americas, Europe and Asia.

5 Irish Cement Limited is an Irish-incorporated company and a subsidiary of CRH plc. It has its registered office at Platin, County Louth. The business done by Irish Cement at Platin involves the production and supply of a range of cement products.

6 Mr Seamus Lynch is a senior executive within the CRH Group.

7 The Competition and Consumer Protection Commission needs no introduction. It is the statutory body charged with responsibility for, inter alia, investigating suspected breaches of (a) the Competition Act 2002, as amended, and (b) Articles 101 and 102 of the Treaty on the Functioning of the European Union.

Part 4

The Reliefs Sought

8 By way of plenary summons of 10th November last, the plaintiffs seek the following principal reliefs:

(1) a declaration that the Commission has acted ultra vires and contrary to s.37 of the Competition and Consumer Protection Act 2014, and outside the scope of its search warrant of 12th May, 2015, in seizing books, documents and records unrelated to activity in connection with the business of supplying or distributing goods or providing a service at the premises of Irish Cement Limited at Platin;

(2) a declaration in accordance with s.3 of the European Convention on Human Rights Act 2003 that the Commission has acted in contravention of Art.8 of the European Convention on Human Rights;

(3) a declaration that the Commission has acted in breach of Arts. 7 and 8 of the Charter of Fundamental Rights of the European Union;

(4) a declaration that the Commission has acted in breach of the plaintiffs' right to privacy under Art. 40.3 of the Constitution;

(5) a declaration that the Commission has acted in breach of the Data Protection Acts 1988 and 2003; and

(6) an injunction restraining the Commission from accessing, reviewing or making any use whatsoever of any books, documents or records, howsoever described, which were seized by the Commission on 14th May, 2015, and which do not relate to an activity in connection with the business of supplying or distributing goods or providing a service at the premises of Irish Cement at Platin.

9 Certain other reliefs are also sought.

Section 37

A. The Text of Section 37(1)–(3).

Part 5

10 The “dawn raid” done at Irish Cement's premises was done pursuant to s.37 of the Competition and Consumer Protection Act 2014. That section is comprised of 14 sub-sections but, to a very large extent, it suffices to recite three of them, s.37(1)–(3), for the purposes of this judgment:

‘(1) For the purpose of obtaining any information which may be required in relation to a matter under investigation under the Act of 2002[1]an authorised officer may, on production of a warrant issued under subsection (3), authorising him or her to exercise one or more specified powers under subsection (2), exercise that power or those powers.

(2) The powers mentioned in subsection (1) are the following:

‘(a) to enter, if necessary by reasonable force, and search any place at which any activity in connection with the business of supplying or distributing goods or providing a service, or in connection with the organisation or assistance of persons engaged in any such business is carried on[2];

(b) [this subsection is not relevant to these proceedings]….

(c) to seize and retain any books, documents or records relating to an...