Instead of Introduction
The Court of Justice of the European Union (“CJEU“) opened proceedings on Case C-619/23, Ronos, according to a request for a preliminary ruling by the Administrative Court of Sofia District – Bulgaria (“Court”). The Court requested an interpretation of the scope of powers of the Bulgarian antitrust authority (“CPC”) action in seizing conversations from a private mobile device during dawn raids carried out at premises of undertakings investigated for alleged cartel infringements.
This request for a preliminary ruling on how EU law interacts with guarantees of basic human rights established in the Bulgarian Constitution gives the European Union’s top court a fresh chance to examine the legal boundaries of dawn raids and their impact on individual privacy.
What is the Preliminary Procedure?
The preliminary procedure, under Article 267 of the TFEU (ex-Article 177 EEC and ex-Article 234 EC), is a vital mechanism for cooperation between the CJEU and national courts in cases involving novel and questions of general interest for the consistent application of EU law, particularly important in the application of EU competition law.
The Facts of the Case
On June 23, 2022, the CPC, initiated proceedings to establish a possible infringement by several undertakings in the form of a prohibited agreement and/or concerted practice (cartel), the object of which was to prevent, restrict, and distort competition by manipulating tendering procedures.
In the context of that procedure, with the authorization of the court having jurisdiction, a dawn raid was carried out at the premises of undertaking Ronos OOD. During the surprise visit, an inspection official accessed the managing director’s laptop, which had installed software linking to the Viber chat app on the employee’s mobile phone. The inspector took screenshots of certain chats on the laptop’s Viber software, which he believed were relevant to the investigation. After an inspection was carried out, CPC found that the contents of the correspondence in the Viber app, screenshots of which had previously been taken, had been almost completely deleted.
By a decision of October 6, 2022, the CPC has determined that the obligation to cooperate during the dawn raid has been violated, and the removal of the content of the chats in the Viber app, is regarded as obstructing the inspection. On that basis, fines were imposed on Ronos OOD and two natural persons present at the inspection – the other applicants, MA and TI. These decisions were appealed, which led to the case being brought before the CJEU.
Legal Considerations
To assess whether the removal of the chat content in the Viber app constitutes an obstacle to the CPC in the exercise of their powers, the referring Court must determine whether access to and inspection of the correspondence constituted a lawful exercise of the powers of the CPC in carrying out the dawn raid.
The Bulgarian Constitution provides more robust protection for citizens’ correspondence than EU law. While EU law allows limitations on fundamental rights for public interests, the Bulgarian Constitution (Article 34) limits the inviolability of correspondence only with a judge’s authorization, specifically for uncovering or preventing serious criminal offenses. The Court notes that under Article 15 of the Bulgarian Competition Act and Article 101 TFEU, prohibited agreements, although serious competition law infringements are not considered criminal offenses under the Bulgarian Criminal Code.
Consequently, according to the referring Court, it cannot be assessed whether such a restriction provided for by law, regardless of the public, governmental, or other overriding interest that it is intended to serve, is proportionate and reasonable. The referring Court states that it must respect the primacy of EU law over national law but without prejudice to the stronger guarantees (compared to EU law) contained in the Bulgarian Constitution to protect the citizen’s right to freedom and confidentiality of correspondence.
Privacy Protection During Unannounced Inspections in Domestic Legislation
The issue of privacy protection during the dawn raid has arisen in domestic practice, specifically in the interpretation of the provisions of the Serbian Competition Act. Article 53 of the Serbian Competition Act provides for the so-called unannounced inspection, modeled after the dawn raid in EU legislation, involving a sudden control of premises, data, and items. A highly controversial issue regarding the unannounced inspection has emerged, which, as we have seen, can significantly intrude upon individuals’ privacy.
According to legal formulation in the Serbian Competition Act, such unannounced inspections can be carried out without a court decision, the presence of witnesses, or prior or subsequent notification to the court. The decision to carry out unannounced inspections is anchored solely on the administrative procedure conducted by the Serbian Competition Authority. This legal provision directly contradicts the guarantees of inviolability of the home contained in Article 40 of the Constitution of the Republic of Serbia, as well as Article 8 (Right to respect for private and family life) of the European Convention on Human Rights (“ECHR“) and the binding practice of the Strasbourg Court (“ECtHR“).
It is worth noting that this was just one of the contentious issues in the antitrust framework, addressed in the Constitutional challenge of the Competition Act submitted in 2017 by the Bar Association of Serbia, the national bar association, in which the Gecić Law office made a significant contribution.
Conclusion
In the Ronos case, the ECHR faces a pivotal moment, examining the validity of actions by the CPC. The ongoing proceedings highlight the intricate balance required between antitrust powers and individual privacy rights, particularly in the context of dawn raids.
Ultimately, the CJEU’s decision will shape the future of antitrust enforcement, influencing the delicate interplay between legal authority and individual privacy rights. The Ronos case is a crucial juncture in defining the boundaries of antitrust powers within the evolving competition law landscape, which will sooner or later resonate in Serbian antitrust law.
