While the Serbian Competition Commission has recently conducted its first dawn raid, it seems to be adamant in doing it with more frequency in the future. The said investigative tool has come under an increased scrutiny of the EU and member states competition authorities. Following the ruling of the European Court of Human Rights (“ECHR”) declaring the Czech Competition Authority’s dawn raid without a court warrant illegal, the Slovakian Supreme Court also declared a dawn raid performed by the Slovakian Competition Authority to be unlawful.
Both Serbian and Slovakian regulatory frameworks provide that dawn raids are to be authorized by the head of the national competition authority. This helps keeping dawn raids confidential and conducted at a moment’s notice, but it also bestows extensive discretionary powers to the competition authority in determining the necessity and scope of the inspection. This was the first time the Slovakian court invalidated a dawn raid (and ordered gathered evidence to be disposed of) based on lack of justification and proportionality and included a reference to the ECHR’s decision on the Czech Competition Authority’s dawn raid.
As Serbian highest courts have started to align their decisions with those of the ECHR and the courts of the EU, the Serbian Competition Commission will, from the outset, need to apply the highest standards when using enforcement tools like the dawn raids, while the undertakings under scrutiny can count on a number of means to efficiently defend themselves against unreasonable searches.