On 18 February 2015, the Brussels Court of Appeal (the "Court") held that antitrust dawn raids carried out by the Belgian Competition Authority (Belgische Mededingingsautoriteit / Autorité belge de la concurrence) ("BCA") at the premises of travel agents on 23 February 2006 and 7 March 2006 were illegal as they had not been subject to prior authorisation from an independent judge.
In February and March 2006, the BCA inspected the premises of several travel agents, including TUI Travel Belgium NV ("TUI"), in the context of an investigation regarding alleged illegal agreements on prices and terms and conditions. Several travel agents decided to challenge before the Brussels Court of Appeal the decision of the BCA to use the data obtained from the dawn raids. The appeals were based on several grounds, including the illegality of the use of data obtained in the framework of dawn raids carried out without prior judicial authorisation.
The Court first made clear that, since TUI was the only claimant which had actually been investigated by the BCA, it was the only party to the proceedings that had a right that could be infringed.
The Court also recalled that, under the 1999 competition law applicable at the time of the dawn raids, inspections in the private homes of employees of the undertaking under investigation were subject to the "prior authorisation of an examining magistrate", contrary to inspections of the premises of the undertaking itself.
The Court went on to state that Article 15 of the Belgian Constitution enshrines the principle of inviolability of the home unless otherwise specified by law, and that, under this principle, private homes cannot be distinguished from offices, or legal persons from natural ones. Also, Article 15 of the Constitution, interpreted in accordance with Article 8 of the European Convention on Human Rights ("ECHR"), must be understood as subjecting inspections to a judicial authorisation. Any derogation from this principle should be exceptional and justified by reasons related to the infringement at stake.
The Court noted that Article 23 of the 1999 competition law constituted an exception to this principle. However, there was no indication that such an exception was strictly necessary to reach the goal pursued by the law.
Interestingly, the Court dismissed the argument that, under Articles 6.1 ECHR and 8.1 ECHR, the absence of a prior judicial authorisation could be remedied by an effective a posteriori judicial review within a reasonable period: indeed, the Court noted that "on this issue, the rights and freedoms guaranteed at the national level go further than what is required by the ECHR". In addition, the Court regarded as irrelevant the fact that the inspections also concerned an infringement of European law and that, at the EU level, no prior authorisation from an examining magistrate is required.
The Court further considered that, pursuant to case law of the European Court of Human Rights, Article 6 ECHR and Article 47 of the Charter of Fundamental Rights of the European Union require that an appeal before a judge be available within a reasonable period. This notion of reasonable period implies that the appeal should prevent any measure from being based on an illegal decision or, if this cannot be avoided, should offer an appropriate remedy. However, neither the 1999 competition law (applicable at the time of the inspections) nor the 2006 competition law (which replaced it from 1 January 2007 to 2013) provided for an appeal against a decision to carry out an inspection. In addition, there was no remedy available to avoid that an injured party would have to defend itself against data illegally obtained.
The Court noted that the breach had permanent consequences. The contested data had been incorporated in the statement of objections prepared by the College of Prosecutors (Auditoraat / Auditorat) in 2011. Were the BCA to proceed with this case file, the Competition College (Mededingingscollege / Collège de la concurrence), which is the decision-making body of the BCA, would have to grant the parties access to the file which would include data forming the basis of the objections put forward by the College of Prosecutors but which the Competition College could not see. In such a legal and factual framework, the BCA would certainly breach the principle of good governance and the rights of defence of the undertakings concerned. The same obstacles would arise if the case was to be later appealed before the Brussels Court of Appeal.
As a result, the Court annulled the BCA decision to use the data obtained "in the framework of, or thanks to" the inspections of 23 February 2006 and 7 March 2006 and decided that such data should not be used as evidence. In practice, this ruling is likely to undermine the BCA's case against the travel agents, although the BCA can file an appeal against this judgment (limited to points of law) with the Supreme Court (Hof van Cassatie / Cour de cassation).
Finally, it is worth noting that the current competition law, which entered into force in 2013, subjects all antitrust inspections to the prior authorisation of an examining magistrate.
