Belgium: Belgian Constitutional Court Confirms Legality Of Appeal Procedure Against Use Of Documents And Data Seized By Competition Authority

On 10 December 2014, the Belgian Constitutional Court dismissed the actions challenging the legality of the appeal available to companies against the use of documents and data seized during dawn raids carried out by the Belgian Competition Authority ("BCA").

Article IV.79 of the Belgian Code of Economic Law provides for an appeal against the decisions of the College of Prosecutors in Competition Matters (the "College of Prosecutors") to use documents and data seized during dawn raids carried out in the context of antitrust investigations. However, this appeal can only be filed after completion of the investigation, i.e.,once the College of Prosecutors has issued a statement of objections ("SO") and to the extent that the SO is actually based on the document or data whose confidentiality is disputed. As a result, an appeal cannot be filed immediately following the seizure of the contested documents and is limited to the documents referred to in the SO.

The French- and German-speaking Bar Councils and the Institute of Company Lawyers challenged the legality of Article IV.79 of the Code of Economic Law before the Belgian Constitutional Court, arguing that this provision infringed the principle of equality and non-discrimination enshrined in Articles 10 and 11 of the Belgian Constitution, combined with other rules of law.

The parties contended that the fact that an appeal was only possible at such a late stage of the proceedings constituted a breach of Article 6 of the European Convention on Human Rights ("ECHR") and Article 47 of the Charter of Fundamental Rights of the European Union (the "Charter"), which guarantee the right to a fair trial, including the right to an effective remedy before a court. By contrast, decisions to use seized documents or data can be appealed immediately when the prosecution is carried out under criminal procedural law, which was allegedly discriminatory vis-à-vis defendants in antitrust proceedings. Also, the parties claimed that Article IV.79 of the Code of Economic Law insufficiently protected every aspect of the right to privacy, such as the inviolability of the home and of the correspondence and the individual property rights, in breach of Article 8 of the ECHR and Articles 15, 16, 22 and 29 of the Constitution.

The Constitutional Court rejected the appeal. With reference to the case-law of the European Court of Human Rights, the Constitutional Court first stated that administrative proceedings, such as antitrust proceedings, do not have to be identical to criminal proceedings. The Court found that the legislator's objective to establish an efficient procedural framework for appeals in the context of antitrust proceedings could justify departing in some respects from proceedings in criminal matters.

However, the Constitutional Court noted that administrative proceedings have to comply with the right to a fair trial under Article 6 of the ECHR and Article 47 of the Charter. This implies that an effective judicial review, in both fact and law, must be available to the parties against the contested decision within a reasonable time in order to offer an appropriate mechanism for redress.

In this respect, the Court recalled that Article IV.79 of the Code of Economic Law provides for an appeal mechanism pursuant to which the Brussels Court of Appeal can exclude confidential documents from the investigation file. The Court also noted that pursuant to Article 19(2) of the Judicial Code, the Brussels Court of Appeal can be requested to take interim measures, including the suspension of a decision of the College of Prosecutors relating to the data added to the prosecution file.

In addition, the Constitutional Court underlined that litigious data which is not used to support the SO is not part of the procedural file and is therefore not accessible to the Competition College which will rule on the merits of the case. Therefore, such data cannot harm the parties subject to the measures taken by the College of Prosecutors.

As a result, the Constitutional Court dismissed the case.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.