In early 2006, the Belgian competition authorities organized inspections at the premises of several tour operators and travel agents. In 2011, the Competition Prosecutor communicated a "motivated report" to several travel agents, as well as their professional associations. Following an oral hearing, the Belgian Competition Council took the case under deliberation in 2012. No decision ensued, however, and after the entry into force of a new competition act (incorporated in the new Code of Economic Law) in 2013, the competition authorities reinitiated the case by (re-)communicating the prior "motivated report" to the parties concerned as a "statement of objections" (based on the same case file) under the new Code. Following an appeal by the travel agents concerned, however, the Brussels Court of Appeal ("Court of Appeal") on 18 February 2015 ruled that the competition authorities are prohibited from using any information received during or pursuant to the inspections of 2006. (The judgment is not yet published).
The reason for the Court of Appeal's judgment is twofold. First, the Court of Appeal found the absence of a judicial warrant (i.e. a warrant from an independent juge d’instruction) authorizing the dawn raids to be incompatible with the right to privacy, enshrined in Article 15 of the Belgian Constitution. Even if at the time of the inspections the law did not require a judicial warrant for inspections at company premises, the Court, referring to the case-law of the Belgian Constitutional Court, decided that the absence of a judicial warrant can only be justified if strictly necessary to achieve a lawful aim. In the present case, the Court of Appeal found Article 15 of the Constitution to be infringed based on (i) the fact that the new Code of Economic Law effectively requires all inspections to be preceded by a judicial warrant, and (ii) having regard to the one year time lapse between the initial receipt of relevant information leading to the opening of the investigation and the actual moment of the inspections.
Second, the Court found that the parties did not possess a legal means to contest the lawfulness of the inspections before an independent judge within a reasonable time following the inspections (in violation of Article 6 ECHR and Article 47 of the European Charter of Fundamental Rights). No such possibility was (expressly) provided for under Belgian law. Furthermore, even if the law applicable at the time had to be interpreted as creating an opening for the parties to contest the legality of the inspections (after the judgment of the Belgian Constitutional Court of 22 December 2011), no claim by the parties could be effective at this stage, since the information obtained pursuant to the inspections had already been used to prepare the motivated report earlier (i.e. before the judgment of the Constitutional Court).
The Court of Appeal subsequently concluded that, having regard to the infringement of the parties' rights of defence and the irrevocability of the inspections, the sole remedy consists in prohibiting the competition authorities from using any formation received during, or pursuant to, the inspections of 2006.
The judgment of 18 February 2015 constitutes an important setback for the newly transformed Belgian competition authority. The judgment moreover carries important potential implications for other cases that predate the 2013 competition act.