The Constitutional Tribunal has reviewed the regulations on court approval of unannounced inspections (dawn raids) conducted by the Office of Competition and Consumer Protection (“UOKiK”). At the request of a business entity at which the UOKiK carried out a dawn raid, the Warsaw Court of Appeal asked the Constitutional Tribunal whether the provision that prohibits a business entity from challenging a court’s approval of a dawn raid is compliant with the Constitution. In its judgment of 16 January 2019 (file no. P 19/17) the Constitutional Tribunal stated that it is not, as the provision does not comply with Article 78 in relation to Article 45(1) of the Constitution of the Republic of Poland.
The UOKiK has the right to conduct a dawn raid at any business entity suspected of concluding collusive agreements. A dawn raid is one of the main tools at the Office’s disposal – it makes it possible for the Office to verify any signals from whistle blowers and to obtain evidence of the existence of cartels.
In order to carry out a dawn raid, the UOKiK needs court approval. The approval procedure takes place without the business entity’s participation, and the business entity may not challenge the court’s approval. The Constitutional Tribunal established that the fact that a business entity cannot lodge a complaint means that a court cannot verify whether the business’s freedom to conduct business activity was infringed by the dawn raid. As a result of the Tribunal’s findings, it will now be possible to lodge a complaint against a court’s approval of a dawn raid.
The Constitutional Tribunal stressed that this does not mean that it will no longer be possible to carry out unannounced inspections. In practice, a business entity will have the right to lodge a complaint once it is provided with the court’s approval of the dawn raid, i.e. once the search has begun. It is not yet known what the consequences of the recognition of such complaint may be – e.g. whether the UOKiK will be banned from using evidence obtained during the dawn raid.
The final procedure for lodging a complaint and its consequences will be determined by new provisions that should be introduced to the Act on Competition and Consumer Protection.