It has long been unclear whether and at what point undertakings under investigation may appeal against the access to documents or data that the Belgian Competition Authority (BCA) gains in the context of a dawn raid. Previous versions of the Competition Act did not explicitly provide for a separate appeal process for contesting the BCA's decisions to copy documents and evidence during a dawn raid. In 2013 the Brussels Court of Appeal held that undertakings should have such a right of appeal and the shortcoming under the previous legislation was remedied with the revised Competition Act 2013, which provides for a separate appeal procedure. However, under the new act the option is available only after the adoption of the statement of objections, and only to the extent that it relates to evidence which is used in the context of the statement of objections.

This new feature of the Competition Act was recently contested on the grounds that undertakings under investigation should have the right to appeal the BCA's decisions with regard to documents and digital data copied during a dawn raid immediately, without having to await the statement of objections. In a December 10 2014 judgment the Constitutional Court rejected these claims and validated the new appeal procedure.

The plaintiffs referred in the first instance to the more elaborate appeal rights that defendants have in the context of criminal proceedings. However, the Constitutional Court ruled that a difference in treatment between undertakings subject to criminal proceedings and those subject to administrative proceedings under competition law is justified given the different nature of the two proceedings.

The Constitutional Court also rejected a claim based on a violation of the right to a fair trial, as set out in Article 6 of the European Convention on Human Rights. The Constitutional Court considered that the appeal procedure as laid down in the new Competition Act should be considered an effective remedy, since it prevents the BCA from relying on any evidence that may have been wrongfully obtained. Under the new Competition Act, the decision-making body has access only to the evidence which supports the findings of the statement of objections. All other evidence which may have been collected in the context of the investigation is not part of the file submitted to that body. As a result, according to the court, such evidence can no longer cause harm to the undertaking or person under investigation as it cannot affect the final decision. The court's point of view may be reasonable insofar as it relates to information that is accessible to the decision-making body of the BCA. However, what remains a cause for concern is the access that officials may gain to potentially out-of-scope or privileged information in the course of their investigation, even if this evidence is not used in the statement of objections issued in a particular case.

The judgment of the Constitutional Court settles a longstanding debate which has been the subject of several proceedings before Belgian courts. The judgment has the merit of clarity, although there remains a concern that it leaves the BCA with access to data obtained in the course of a dawn raid that is potentially too broad.

Koen Platteau

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