In a February 18 2015 judgment the Brussels Court of Appeal declared the dawn raid procedure of the Competition Authority, as set out in one of the previous versions of the Competition Act, to be illegal.

The case related to a number of decisions ordering dawn raids in the travel sector. The decisions go back to early 2006 and had been adopted on the basis of the 1999 version of the Competition Act. Under that regime, the College of Competition Prosecutors was entitled to order on-the-spot investigations autonomously, with no prior authorisation from a judicial authority. It was uncontested that the 2006 dawn raid orders had been adopted in line with the then applicable Competition Act. At that time, the act made no provision for appeal against dawn raid orders.

The travel sector case was still pending when the present Competition Act entered into force in September 2013. The competition prosecutor had filed his reports to the decision-making body of the Competition Authority, but the case was still under review at that level. On the basis of the transitional provisions of the new act, the reports which had been filed in pending cases were automatically converted into statements of objections and were subsequently subject to the procedural provisions of the new act.

One of the novelties of the new act is that it now provides for a separate appeal procedure relating to the way in which evidence has been obtained and the type of evidence in the competition prosecutor's file. However, strict conditions apply. The appeal can be launched only after communication of the statement of objections and only to the extent that it relates to evidence which is used against the parties in the statement of objections.

The automatically issued statements of objections in the travel sector case relied in part on evidence collected during the dawn raids carried out in 2006. After the entry into force of the new Competition Act, the parties in the alleged cartel all made use of the new appeal option and asked the Court of Appeal to annul the dawn raid orders. One of the arguments raised related to the lack of proper judicial supervision of these orders.

The court held that a search warrant issued without prior authorisation of a judge violates fundamental human rights, as enshrined in the Belgian Constitution, and is illegal on that ground. It also established that the plaintiffs were entitled to lodge appeals under the new act in the absence of a proper appeal procedure against dawn raid orders in the previous versions of the Competition Act.

As a result of the court's judgment, the evidence obtained in the context of the now-illegal dawn raids must be returned to the parties concerned and cannot be used against them in the context of the statement of objections. This is likely to be a fatal blow to the case.

The judgment is relevant only to cases which are still pending and where dawn raid orders were issued under previous versions of the Competition Act. Under the present version of the Competition Act, decisions ordering a dawn raid are in any event subject to the prior authorisation of a judge.

For further information on this topic please contact Koen Platteau at Simmons & Simmons LLP by telephone (+32 2 542 0960) or email (koen.platteau@simmons-simmons.com). The Simmons & Simmons LLP website can be accessed at www.simmons-simmons.com.

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