On 9 July 2015, the Brussels Court of Appeals ("Court of Appeals") rendered its second judgment concerning the legality of the dawn raids carried out by the Belgian Competition Authority. This time, the dawn raids occurred in the sector of port cargo handling (Case 2014/MR/1 – PSA Antwerp v BMA) [not yet published]. The dawn raids were declared illegal as they infringed Article 15 of the Belgian Constitution. According to the Court of Appeals, the dawn raid warrant was subject to neither prior judicial authorization nor timely ex post review. The Court, therefore, confirmed its earlier decision in TUI of 18 February 2015 [see our February 2015 newsletter].
On 15 June 2006, the Belgian Competition Authority carried out dawn raids at the premises of a number of associations of undertakings. An appeal was lodged with the Brussels Court of Appeals on March 2014, upon receipt by the parties of a statement of objections. The Court of Appeals, quoting the Belgian Constitutional Court, ruled that the procedural safeguards in place at the time of the dawn raids were insufficient to meet the requirements of Article 15 of the Constitution which concerns the right to respect for a person’s home.
The appellants had claimed that a violation of Article 15 of the Constitution should render the investigation illegal and the statement of objections null and void. The Court of Appeals instead stated that each piece of evidence gathered directly or indirectly from the illegal dawn raid must be excluded from the investigatory file and the procedural file, as well as removed from the statement of objections. The Court of Appeals also clarified that, contrary to what the Authority alleged, not only should explicit references to the illegally obtained evidence be deleted from the statement of objections, but the conclusions drawn on the basis of these documents as well.
Following this decision, it is expected that the paragraphs based on the illegally obtained evidence will be removed from the statement of objections. The Belgian Competition Authority will then have to determine whether the revised statement of objections is still actionable, based on other information obtained during the investigation such as leniency applications. If so, a new statement of objections will be sent to the parties. In any case, the Belgian Competition Authority is expected to bring this case before the Supreme Court.