Introduction
Antitrust investigations entail, by their very nature, a certain tension between the different and sometimes competing interests involved, in particular the public duty to investigate infringements and the respect for private life. Both the European Convention on Human Rights (“Convention”) and the Charter of Fundamental Rights of the European Union (“Charter”) acknowledge that everyone has the right to respect for his or her private life and home. But that is not all. As the digital age evolves quickly, there is a specific privacy feature that is becoming more and more relevant these days, not only as a communication link for individuals and companies, but also as an investigation tool for competition authorities: the notion of “correspondence.”
At least from a literal standpoint, Article 8 of the Convention and Article 7 of the Charter place the protection of correspondence, on the one hand, and the respect for private life and home, on the other, on an equal footing. A series of rulings rendered by the European Court of Human Rights (ECHR), including the recent Bărbulescu judgment issued in September 2017, help clarify how traditional and modern day communications are protected against unlawful intrusions by public and private bodies.
Case law of the ECHR
The starting point for this debate is Article 8(2) of the Convention, which does not exist in the equivalent Article 7 of the Charter. According to said provision, “[t]here 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.”
The ECHR was called upon to deal with Article 8 on a number of occasions and under different and sometimes extreme scenarios, ranging from the monitoring of email, telephone or internet use (1) to video surveillance.(2) Most of these cases concern relationships between individuals and their employers. However, many others tackled by the ECHR address directly the search and seizure, by public authorities (including competition agencies), of documents in different formats at companies’ premises in the light of Article 8.(3)
In a nutshell, there are three main takeaways from these judgments.
First, the notion of “home” in Article 8 of the Convention encompasses not only a private individual’s home, but also the office of a company or, in general, a business premise.
Second, all communications made by a person, be it at a private home or at the workplace, and regardless of their professional or personal nature and of their format (physical or electronic), are covered by the concept of “correspondence”.
Third, the search and seizure of communications, notably carried out by a public entity, constitutes an interference with the right to respect for the envisaged person’s “home” and “correspondence” as guaranteed by Article 8 of the Convention.
But why and how is this relevant for competition law proceedings?
There is an overriding principle of EU law, according to which all evidence in all legal proceedings conducted by Member States or EU institutions, obviously including competition probes, must be consistent with the fundamental rights of the scrutinised parties(4).
Hence, EU law cannot accept evidence obtained in disregard of the procedure laid down for gathering it and designed to protect the fundamental rights of the persons concerned. The use of that procedure is, therefore, regarded as an essential procedural requirement within the meaning of Article 263(2) TFEU and, according to settled case-law, the infringement of an es¬sential procedural requirement affects the validity of the defective act, irrespective of whether it caused harm to the disputing party.(5)
In matters of fundamental rights it should also be recalled that, pursuant to the first subparagraph of Article 6(1) TEU, the Charter has the same legal value as the Treaties. Moreover, Article 52(3) of the Charter states that, in so far as the Charter contains rights that correspond to those guaranteed by the Convention, their meaning and scope are to be the same as those laid down by the Convention. EU courts have confirmed that the meaning and scope of the guaranteed rights are to be determined not only by reference to the text of the Convention, but also by reference to the case law of the ECHR.(6)
In the specific case of the right to respect for private life, home and correspondence, the ECJ has expressed on a number of occasions that “it is clear that the said Article 7 [ofthe Charter] contains rights corresponding to those guaranteed by Article 8(1) of the [Convention]. Article 7 of the Charter must therefore be given the same meaning and the same scope as Article 8(1) of the [Convention], as interpreted by the case-law of the European Court of Human Rights”.(7)
In practical terms, this means that, since the apprehension of communications constitutes, in the ECHR’s view, an interference with the exercise of the right guaranteed by Article 8(1) of the Conven¬tion, it also amounts to a restriction of the corresponding right provided for in Article 7 of the Charter. Additionally, this also means that the conditions under which such interference needs to be conducted in order to become lawful are those expressed in Article 8(2) of the Convention, as applied by the ECHR.
In making this assessment, the ECHR typically undertakes a threefold check to confirm whether the interference:
(i) was in accordance with the law;
(ii) pursued a legitimate aim; and
(iii) was proportionate to the aim pursued.
These requirements need to be analysed on a case-by-case basis, but even the fulfilment of the first and foremost condition – pertaining to the existence of a legal basis authorising the interference to take place – may raise more doubts than it might appear.
In Portugal, for instance, the competition act (Law No. 19/2012, of 8 May) does not have a legal provision enabling the Authority to apprehend correspondence as such; it is only allowed to seize documents regardless of their support. For several years under the previous competition law (enacted in 2003), both the Authority and Portuguese courts considered that a letter or an email that had been previously opened by the addressee should not qualify as a communication, but rather as a document. However, this reasoning has become far more questionable, especially since the approval of the law on cyber-crime (Law No. 109/2009, of 15 September).
This particular piece of legislation implements in the Portuguese legal order Council Framework Decision 2005/222/ JHA, of 24 February 2005, on attacks against information systems and adjusts national law to the Council of Europe’s Convention on Cybercrime. The scope of Law No. 109/2009 is therefore far reaching and it actually contains, according to Articles 1 and 11 thereof, the general legal framework applicable to the collection of digital evidence in Portugal. In particular, Article 17 of Law No. 19/2009 is very clear in stating that the apprehension of electronic messages is only possible under the terms allowed to the apprehension of correspondence (irrespective of whether those messages were accessed by the original recipient or remain unread at the time of the search).
Consequently, at the current stage emails are covered by the privilege of correspondence awarded directly by the Portuguese Constitution and may only be seized if there is a legal provision permitting it and if the apprehension is ordered by a judge. Neither of these requirements exists in the national competition act, which renders it difficult to reconcile the exercise of a typical investigatory power held by a competition authority with the right to respect for privacy under the Convention and the Charter, as interpreted by the ECHR and EU courts.
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(1) Judgments in cases 61496/08 Bărbulescu v. Romania, 05.09.2017; 39315/06 Telegraaf Media Nederland Landelijke Media B.V. and Others v. the Netherlands, 22.11.2012; 62617/00 Copland v. the United Kingdom, 03.04.2007; 54934/00 Weber and Saravia v. Germany, 29.06.2006; and 20605/92 Halford v. the United Kingdom, 25.06.1997. See also pending application No. 588/13 Libert v. France.
(2) Judgment in case 420/07 Köpke v. Germany, 05.10.2010. There is also an important case pending: application No. 70838/13 Antović and Mirković v. Montenegro.
(3) Judgments in cases 63629/10 and 60567/10 Vinci Construction et GTM Génie Civil et Services c. France, 02.04.2015; 74336/01 Wieser and Bicos Beteiligungen GmbH v. Austria, 16.10.2007; 50882/99 Petri Sallinen and Others v. Finland, 27.09.2005; 41604/98 Buck v. Germany, 28.04.2005; 33400/96 Ernst et Autres c. Belgique, 15.07.2003; and 37971/97 Société Colas Est and Others v. France, 16.04.2002.
(4) See, inter alia, judgment of 3 September 2008, Kadi and Al Barakaat International Foundation/Council and Commission, in joined cases C-402/05 P and C-415/05 P, EU:C:2008:461, §§ 281-284 and case law cited therein, accessed and available at curia.europa.eu.
(5) Judgment of 6 April 2000, Commission/ICI, C-286/95 P, EU:C:2000:188, §§ 42-52, accessed and available at curia.europa.eu.
(6) Judgment of 22 December 2000, DEB, C-279/09, EU:C:2010:811, § 35, accessed and available at curia.europa.eu.
(7) See to, that effect, judgment of 5 October 2010, McB., C-400/10 PPU, EU:C:2010:811, § 53 and judgment of 15 November 2011, Dereci and others, C-256-11, EU:C:2011:734, § 70, accessed and available at curia.europa.eu.
