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17 January 2018
czech republic

The Delta Pekárny case as a leading example of ineffective protection in an Eastern European Member State?

The practice of the Czech Competition Authority in question.

The legality of a 2003 dawn raid carried out by the Czech Competition Authority ("CCA") on Delta Pekárny's business premises was the subject of a long-running dispute. The CCA has the power to inspect business premises without any prior judicial warrant (a court order is only needed to inspect private premises). Czech procedural law afforded the implicated companies two procedural options to challenge the legality of the raid – one requiring the CCA to terminate the administrative proceedings without finding an infringement, the other requiring the company to await the final decision on the infringement. In 2014, the ECoHR found such an ex-post review to be ineffective, since it is not sufficiently immediate.1 As a consequence, the Delta Pekárny dawn raid was considered illegal. Also, the review of the case before the Czech Constitutional Court was re-opened.

Immediate consequences of the ECoHR decision – bringing dawn raids to a temporary halt.

The ECoHR decision was a significant blow to the CCA. It put all planned dawn raids on hold for several months in order to evaluate the judgment and to look for a solution in order to resume dawn raids. The initial understanding of the CCA after the ECoHR decision was that the CCA could perform dawn raids only with prior judicial approval, unless a legislative change was made. At the beginning of 2015, the tide turned and the CCA resumed dawn raids, claiming that the CCA's analysis showed that no prior judicial approval would be necessary. The Delta Pekárny judgment was believed to be an isolated one based on several peculiarities of the case without the possibility or need to infer general conclusions, and the CCA did not identify a systemic problem in the Czech legal system. The CCA claimed that the legal system offered sufficient immediate legal protection to challenge the legality of a raid, particularly through a specific administrative action (the socalled action against illegal interference of an administrative body, "separate administrative action"). However, the case law and legal interpretation at that time allowed such an action to be filed only if a final decision on the infringement was issued.    

The decision of the Czech Constitutional Court and legislative changes.

In the re-opened case on the Delta Pekárny dawn raid, the Constitutional Court considered the raid illegal in February 2016, siding with the ECoHR that the Czech legal system afforded insufficient protection of fundamental rights.

In order to bridge the legal uncertainty after the statements of the CCA and the decision of the Czech Constitutional Court and to guarantee sufficient immediate protection of fundamental rights in compliance with EU requirements, changes were introduced in the applicable legislation whereby it was explicitly stated that any company can file a separate administrative action to challenge the legality of a dawn raid. The separate administrative action must be filed within two months of the inspection, irrespective of the status of the infringement proceeding.


1 Delta Pekárny A.S. v. Czech Republic, App. No 97/11, ECHR 279, Judgment of 2 October 2014 (NYR).