Brussels Court of Appeal declares travel sector dawn raids from 2006 illegal

On February 18, 2015 the Brussels Court of Appeal rendered a groundbreaking judgment regarding the legality of dawn raids organized under the Belgian Competition Act of 1999. The Court of Appeal held that the dawn raids are illegal because they were not performed on the basis of a judicial warrant of a "juge d'instruction") and because the law did not provide for any appropriate appeal possibility. As a result, all documents obtained through and as a result of the dawn raids in the case concerned may no longer be used by the authorities.

The background of the case concerns a series of dawn raids that took place in 2006 in the travel sector in Belgium. The dawn raids were based on an instruction from the Competition Prosecutor (leader of the investigating team within the competition authorities) that was provided for in the law at the time. Following the investigations, several years later, the Competition Prosecutor submitted his report to the Belgian Competition Council for its decision.

Following the entry into force of a new Competition Act in 2013 which allows for an appeal possibility against the use of documents obtained from dawn raids, the companies petitioned the Court of Appeal to strike down the use of these documents on the basis of the illegality of the dawn raids. The Court of Appeal sides with the undertakings on the basis of two reasons. First of all, the Court of Appeal considers that the instruction issued by the Competition Prosecutor is not a sufficient means of protection under Belgian constitutional law. Instead, a judicial warrant from an independent "juge d'instruction" was needed.

Secondly, the Court of Appeal considers that there was also no other appropriate appeal possibility available to the parties at that time to allow an independent judge to check and analyze the dawn raids.

The Brussels Court of Appeal indicates that the point that the protection given by the European Convention of Human Rights is possibly less far reaching is irrelevant because the Belgian Constitution offers a more far reaching protection.

The Court then continues by saying that as a result of the illegality of the dawn raids, all documents obtained during the dawn raids and as a consequence of the dawn raids must be taken out of the file and returned to the parties who were raided. The competition authorities can still appeal the judgment, but such appeal (before the Belgian supreme Court -‘Court of Cassation') is limited to only the points of law. This judgment could therefore have very far reaching consequences for several other cases in which dawn raids took place. Stibbe represented one of the applicants in the appeal.