Landmark Judgment Limits Dawn Raid Powers Of CCPC

Author:Ms Helen Kelly
Profession:Matheson
 
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On 6 April 2016, Judge Barrett of the Irish High Court ruled that the Competition and Consumer Protection Commission (CCPC) unlawfully seized entire email accounts during a 2015 dawn raid.  This ruling was on a challenge by the raided company of the seizure of the entire email account of an employee who it argued was not involved, at the relevant times, in the company under investigation by the CCPC.  At present, there is no Irish statutory mechanism or regulatory guidance on the handling of records seized at a dawn raid.

The Court agreed with the raided company that irrelevant records were likely seized and that this was not permitted by the warrant authorising the raid or the CCPC's statutory powers. The statutory 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 interpreting this limitation, Judge Barrett held that the CCPC was obliged to exclude irrelevant documents from its seizure and failed to take steps do so.  In addition, Judge Barrett identified a potential breach by the CCPC of the right of privacy under the Irish Constitution and the European Convention on Human Rights (ECHR). In this respect, this ruling is at odds with recent EU Court of Justice decisions such as Deutsche Bahn which rejected arguments that dawn raid powers of the EU Commission conflict with the ECHR. 

By way of relief, Judge Barrett granted an injunction restraining the CCPC from accessing seized records pending an agreement between the parties on what records were irrelevant.  

Comment

No one expects the CCPC to arrive at a dawn raid with a precise wish list, or to idly accept the raided company's view on what is relevant to a case that the CCPC is developing piece-by-piece. This implies that some post-raid "sifting" is unavoidable, at least for so long as the CCPC has insufficient resources to conduct multi-day raids where records are "sifted" on-site, as the EU Commission does. Thus, the key question is whether Judge Barrett has rightly struck the balance in favour of privacy, or unduly blunted the powers of a regulator that already faces huge challenges in prosecuting cartellists?  

We fully expect this ruling to be appealed, and to be fiercely debated pending a final appellate court decision which could be three years or more from now.

Pending any appeal, a cloud of uncertainty has been cast over the powers of the CCPC and other...

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