On 29 May 2017, a five judge division of the Irish Supreme Court unanimously upheld a landmark High Court judgment identifying legal breaches arising from a dawn raid investigation by the Competition and Consumer Protection Commission (CCPC). The message from this Supreme Court judgment is strong and clear - all regulators' investigative powers are limited by proportionality principles and privacy rights and regulators must take steps to afford companies their rights in this respect. This judgment provides a strong legal basis for companies asserting their defence rights during regulatory investigations. In addition, the Supreme Court recommended that there be new legislation and / or regulatory protocol to avoid a repeat of this case.
This judgment arose from a challenge to the CCPC's retention of the entire email account of a company director during a 2015 dawn raid carried out as part of an investigation of suspected competition law infringement. At present, there is no Irish legislation or CCPC regulatory protocol on treatment of irrelevant material seized at a dawn raid and the legislative power of seizure is very broadly drafted, in that its only express limitation is that seizure must be "necessary for the performance by the Authority of any of its functions". In this context, the raided company, Irish Cement Limited, sought to engage with the CCPC regarding treatment of the seized material which it argued fell outside the scope of the CCPC's powers and, as such, should not be reviewed. The CCPC refused to engage with the raided company, asserting an entitlement to independently review all material and reach its own conclusions without returning any irrelevant material obtained outside of its powers.
The Supreme Court held that the raided company had well-founded concerns that the CCPC intended to unlawfully review irrelevant material and was critical of the CCPC's refusal to engage and the absence of any regulatory protocol for the treatment of irrelevant seized material. In particular, the Supreme Court held that the CCPC's proposed approach to the review of seized material was ultra vires and in breach of the right of privacy under the Irish Constitution and the ECHR. As a consequence, the Supreme Court upheld an injunction preventing the CCPC from reviewing seized material and recommended two courses of action. First, Judge Charleton recommended that the CCPC consider adopting a regulatory protocol and, in the...