On 9 July 2015, the Brussels Court of Appeal held that antitrust dawn raids carried out in 2006 at the premises of cargo handlers by the former Belgian Competition Council (now the Belgian Competition Authority) were illegal.
These dawn raids took place under the former Belgian competition law of 1999, in the context of an investigation against cargo handlers suspected of having fixed prices for some 20 years in the Belgian ports of Antwerp, Ghent and Zeebrugge.
Although the judgment is not yet publicly available, it is understood that the Court of Appeal followed a reasoning similar to that adopted earlier this year in another appeal against dawn raids carried out at the premises of travel agents, also in 2006. These dawn raids were deemed illegal as they were not subject to prior authorisation by an independent judge. The Court considered that Article 23 of the former 1999 competition law constituted an exception to the principle of inviolability of the home enshrined in Article 15 of the Belgian Constitution. As a result, such derogations are only legal if they are exceptional and justified by reasons linked to the infringement concerned by the dawn raids. The Court found that these conditions did not apply. Also, the Court considered that the former 1999 competition law did not provide for the possibility of an appeal before a judge within a reasonable period, as required under Article 6 of the European Convention on Human Rights and Article 47 of the Charter of Fundamental Rights of the European Union (See VBB on Belgian Business Law, Volume 2015, No. 2, p. 5, available at www.vbb.com).
These rulings of the Brussels Court of Appeal are of mostly historical interest as they concern cases prosecuted under the 1999 version of the Belgian competition law. The 1999 competition law has since been replaced by the 2006 competition law, which was in turn abrogated when the new Code of Economic Law, containing new competition law provisions, entered into force in 2013. The Code of Economic Law requires the prior authorisation from an independent judge for dawn raids and also allows appeals against prosecution decisions prior to the adoption of the final decision on the merits. These Court rulings are therefore no longer relevant to cases prosecuted under the current competition rules.
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