Competition law and Article 8 ECHR

1. Competition law and Article 8 ECHR VMR, 13 March 2008 Jolien Schukking

2. Outline of presentation • Introductory remarks on the Convention • Article 8: scope and structure • Use of powers of investigation by Competition Authorities in the light of Article 8 • Conclusions

3. Introductory remarks on the Convention • Council of Europe, 1949 • Convention,1950 (signed), 1953 (entered into force) • 13 Protocols to the Convention • Parties to the Convention: 47 states

4. Characteristics of the Convention • Right of individual petition (Article 34) • The principle of subsidiarity (Articles 1, 13 and 35) • Binding force of judgments and just satisfaction for the injured party (Articles 46 and 41) • “Living instrument”

5. ‘Living instrument’ • Colas Est v. France judgment (2002), para. 41: “The Court reiterates that the Convention is a living instrument which must be interpreted in the light of present-day conditions. […] Building on its dynamic interpretation of the Convention, the Court considers that the time has come to hold that in certain circumstances the rights guaranteed by Article 8 of the Convention may be construed as including the right to respect a company’s registered office, branches or other business premises. ”

6. Relevant Articles in the context of Competition law • Article 6 of the Convention: nemo tenetur-principle, presumption of innocence, fair trial within a reasonable time, proportionality of the fine • Article 8 of the Convention: right to respect for private life, home, correspondence [and family life]

7. Article 8 of the Convention; text • 1. Everyone has the right to respect for his private and family life, his home and his correspondence. • 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

8. Article 8 of the Convention: structure • First paragraph: applicability and scope • Second paragraph: “fair-balance-test” for the interference to be justified, it must be: • Prescribed by law • Pursue a legitimate aim • Proportionate to that aim

9. Article 8 of the Convention: scope • Private life: No exhaustive definition. Too restrictive to limit the notion of ‘private life’ to the individuals’ own personal life. Niemietz v. Germany judgment (1992), para. 29: “[…] There appears, furthermore, to be no reason of principle why this understanding of the notion of ‘private life’ should be taken to exclude activities of a professional or business nature since it is, after all, in the course of their working lives that the majority of people have a significant, if not the greatest, opportunity of developing relationships with the outside world. […]”

10. Article 8 of the Convention: scope • Home: Niemietz v. Germany judgment (1992), para. 30: “As regards the word “home”, appearing in the English text of Article 8, the Court observes that in certain Contracting States, notably in Germany, it has been accepted as extending to business premises. Such an interpretation is, moreover, fully consonant with the French text, since the word “domicile” has a broader connotation than the word “home” and may extend, e.g., to a professional person’s office.” Colas Est v. France judgment (2002), para. 41 [sheet 5]

11. Powers of investigation and Article 8 • Entry into and search of a person’s (employee’s) home (Article 55 Mw) • Entry into and ‘search’ of the business premises (Articles 5:15 and 5:18 Awb) • Sealing of the premises or objects (Article 54 Mw) • Claiming documents, including correspondence (Articles 5:17 Awb and 51 Mw)

12. Entry into and search of a person’s (employee’s) home • Three situations: • 1. no permission to enter, no authorisation by a judge • 2. no permission to enter, but an authorisation by a judge • 3. permission to enter the home Camenzind v. Switzerland judgment (1997): criteria • Search necessary to provide evidence • Relevant legislation afforded adequate and effective safeguards against abuse • Limited scope of the search • Took place in the applicant’s presence after he had telephoned a lawyer • Search lasted for two hours

13. Entry into and ‘search’ of the business premises • Under Dutch legislation, the word “home” does not extend to business premises. Therefore, an authorisation by a judge is not required for entering these premises. • However, Article 8 applies, which means that the ‘fair balance’-test of para. 2 of this provision should be applied in order to establish whether the entry into the premises and search at hand was justified.

14. Sealing of the premises or objects • Sealing of business premises constitutes an interference with the rights protected by Article 8. • Also here, the ‘fair balance’-test should be applied.

15. Require the production of documents, including correspondence • Also in this context issues under Article 8 could arise. Within the scope of this provision fall: • Personal data • Correspondence

16. Conclusions • The meaning of Article 8 for the Competition law practise is big. ECHR case-law implies that: • Certain business activities and premises fall under the protection of Article 8. • Interference with these protected rights is only justified when prescribed by law, it pursues a legitimate aim and is proportionate to that aim. • All facts and circumstances should be taken into account when balancing the interests involved. • Breaches of Article 8 have to be compensated by the authorities.