COMPETITION • EUROPEAN LAW • PROCEDURE
In the EU legal order, the principle of inviolability of the home has been recognized as a principle common to the laws of the Member States in regard to the private dwellings of natural persons. To oppose to the right of access in their premises by officials of the Commission, undertakings attempted to claim this fundamental right of defense. However, the Court of Justice refused to extend to business premises the principle of inviolability of the home. Firstly, it considered that the inviolability of business premises is not a principle common to the Member States since there are divergences between the various legal systems pertaining to the nature and degree of protection afforded to business premises against intervention by the public authorities. Article 8 of the European Convention on Human Rights, which claimants have also tried to rely on is only concerned with the development of the personal freedom of individuals and may not therefore be extended to business premises. The Court has therefore not admitted the existence of a fundamental right of inviolability of the home for undertakings. It only recognizes a right to the protection of business premises against the intervention by the public authorities if it is arbitrary or disproportionate. Regulation No 1/2003 indirectly confirms this case law as it now authorizes inspections in all premises where the Commission suspects that books or other business records may be kept, including the homes of directors, managers and other members of staff.
The inclusion within the body of EU legal rules of the Charter of Fundamental Rights of the European Union has apparently given undertakings a new basis on which to challenge raids in the homes of individuals. In effect, according to Article 7 of the Charter, “Everyone has the right to respect for his or her private and family life, home and communications”. However, in a case where the undertakings claimed that searches having taken place without prior judicial authorization were in violation of the Charter and also of Article 8 ECHR, the General Court, while finding that the inspections “clearly” interfered with the respect for private life, home and communications, held that they did not violate the fundamental principles insofar as the Commission is bound by the obligation to state reasons for its inspection decision and as remedies are available a posteriori.
In practice, access to premises is only a source of conflict when the undertaking opposes the inspection. In such cases, the Commission’s officials may collect the necessary information without the cooperation of the undertaking but with the support of national authorities, which are required to provide assistance. The rights of defense of the undertaking in question are then governed by the national law that determines the appropriate procedural conditions. The Commission must comply with those national rules and provide the competent body with all information necessary to exercise its own supervision. This supervision is limited however; although it is within the powers of the national body to assess whether the measures of constraint envisaged are arbitrary or excessive in respect of the subject-matter of the investigation, it cannot substitute its own assessment of the need for the investigation for that of the Commission.
The limitation of the national judicial authority’s task to a supervisory role may go against the conception of certain internal laws of the Member States, such as France. In effect, Articles L. 450-3 and L. 450-4 of the Commercial Code require, prior to any search of a person’s domicile, a court order (warrant) to verify that the application is well-founded. It therefore appears difficult to impose on the national court to limit itself to an assessment of the arbitrary or disproportionate nature of the measure requested by the Commission, without ascertaining whether the presumptions are reasonable.