On 22 December 2011, the Belgian Constitutional Court issued a preliminary ruling holding that Articles 44, 45 and 75 of the Belgian Competition Law violate the Belgian Constitution, the European Convention of Human Rights and the Charter of Fundamental Rights of the EU, if interpreted as excluding decisions of the College of Competition Prosecutors from a possible appeal before the Brussels Court of Appeal.
The preliminary ruling was requested by the Brussels Court of Appeal in a case concerning a dawn raid conducted at the premises of Belgacom (See, VBB on Belgian Business law, Volume 2011, No. 5, available at www.vbb.com). In these proceedings, Belgacom had challenged decisions taken by the College of Competition Prosecutors with respect to documents copied during the inspection, which the College refused to consider as covered by legal professional privilege or outside the scope of the investigation. However, the Brussels Court of Appeal noted that Article 75 of the Belgian Competition Law could be interpreted as granting the Brussels Court of Appeal jurisdiction to rule on appeal only against decisions of the Competition Council and its President, excluding decisions of the College of Competition Prosecutors. In a judgement of 6 April 2011 the Brussels Court of Appeal decided to stay the proceedings and make a preliminary reference to the Constitutional Court, asking whether a lack of judicial review of investigatory measures would be a violation of the right of effective judicial review and the right to a fair trial.
In its ruling of 22 December 2011, the Constitutional Court confirmed that the Competition Law would violate the principle of non-discrimination and the right of effective judicial review if it was interpreted as excluding decisions of the College of Competition Prosecutors from a possible appeal before the Brussels Court of Appeal or another judicial body. However, the Constitutional Court held that Article 75 could also be interpreted differently. Acts and decisions of the College of Competition Prosecutors in the framework of dawn raid procedures necessarily follow an authorization of the President of the Competition Council. Therefore, it could be argued that such acts and decisions are challengeable before the Brussels Court of Appeal pursuant to Article 75 as decisions taken by a component of the Competition Council. The Constitutional Court concluded that, under this interpretation, there would be no violation.
