European Union: Irish Supreme Court Confirms Unlawfulness Of Electronic Search During Dawn Raid

On 29 May 2017, the Irish Supreme Court dismissed an appeal by the Irish Competition and Consumer Protection Commission ("CCPC") against an April 2016 judgment of the Irish High Court 2016 which found that the CCPC acted unlawfully during a dawn raid conducted against Irish Cement in May 2015 (See VBB on Competition Law, Volume 2016, No. 4, p. 13, available at www.vbb.com).

By unanimous decision, the Irish Supreme Court confirmed that the CCPC acted ultra vires the Irish Competition Act when seizing a complete copy of the mailbox of the Managing Director of Irish Cement during the dawn raid.  The Irish Supreme Court found that the disproportionate, indiscriminate and untargeted scope of the electronic search (which seized approx. 380,000 computer files) breached Irish Cement's constitutional rights and could not be justified on the grounds of urgency or other extenuating circumstance.  In the judgment of Justice MacMenamin, the conduct of the CCPC is said to have breached Irish Cement's right to privacy protected under both the Irish Constitution and Article 8 of the European Convention on Human Rights.  The Irish Supreme Court granted Irish Cement an injunction restraining the CCPC from reviewing or examining any of the documents seized by it.

The case is noteworthy as it strongly criticises the method by which the CCPC conducted its competition law investigation using electronic dawn raids.  Irish regulators will need to adopt a much greater degree of proportionality, transparency and specificity when conducting electronic dawn raids.  For example, this may involve (a) disclosing the search warrant prior to conducting the search, (b) more fully describing the period, products and personnel under investigation, and (c) using a keyword search to limit seizure to relevant documents.  These actions enable a company under investigation to properly exercise its right to effective judicial review of the warrant and scope of documents subject to search and seizure.

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