On 13 December 2017, the Brussels Court of Appeal rendered a judgment clarifying the qualification 'in scope' and 'out of scope' of documents seized by the Belgian Competition Authority (BCA) during dawn raids at the applicants' (Distripaints NV and Novelta NV) premises. The dawn raids were launched after a complaint by SA Durieu Coatings, which accused both distributors of colluding with its competitor Akzo Nobel.

In an interim judgment of 26 November 2014, the Court imposed a 'verification trajectory' on the applicants and the BCA in respect of documents which 'in scope' character was deemed by the applicants to have been insufficiently motivated by the BCA. In a nutshell, the BCA was requested to provide an additional written statement to justify the seizure of the documents, after which Distripaints would be allowed to respond. In the absence of an agreement between the parties, the Court would decide on whether the documents were 'in scope' or not.

The applicants and the BCA could not agree on whether a number of paper and electronic documents fell within the scope of the investigation or not. Therefore, the Court was asked by the applicants to rule on this point. As revealed in the judgment of December 2017, the applicants went home empty-handed.

At the outset, the Court found that the 'internal' nature of a document was irrelevant in determining its 'in scope' or 'out of scope' character. Nor was it necessary for seized documents to contain an explicit reference to 'Akzo Nobel', or to specific brands. Documents containing information on affected markets or market shares of Durieu's competitors could, at least potentially, be 'in scope'. The Court also dismissed the suggestion that documents post-dating Durieu's complaint were necessarily 'out of scope'.

Importantly, the Court held that it could only conduct a 'marginal' review to ascertain whether the applicants were protected against arbitrary and disproportionate conduct and to guarantee their right of defence. The Court observed that the BCA had supplemented its initial decision with further arguments as to the 'in scope' character, for example, identifying specific passages explaining why a document contained relevant information on commercial strategies or on the affected markets. Since these arguments were not prima facie unacceptable, unreasonable or illegal, the Court concluded that the BCA had duly substantiated that the documents qualified as 'in scope' and dismissed the applicants' claim. The documents thus remain in the file.

In a similar case in the Netherlands, the District Court of The Hague ruled on the Dutch Authority for Consumers and Market's powers to select and inspect digital data following a dawn raid. The Court found that companies may under some circumstances successfully argue that certain documents are 'out of scope' [see our August 2017 Newsletter].