Constitutional Tribunal finds undertakings have right to appeal against consent to conduct searches

04 July 2019 | newsletters

The Constitutional Tribunal recently analysed regulations regarding dawn raids carried out by the Office for Competition and Consumer Protection (OCCP) and ruled that the respective law is not in line with the Constitution insofar as it excludes the possibility to challenge rulings allowing searches to be conducted.

Facts

After receiving consent to search from the Warsaw Court for Competition and Consumer Protection (the Circuit Court), the OCCP raided the premises of companies operating in the fitness sector. One of the undertakings searched appealed the ruling even though the right to challenge it before the second-instance court was explicitly excluded by the Competition Act. As a result, the Warsaw Court of Appeals suspended the proceedings and forwarded a question on the constitutionality of the respective provision to the Constitutional Tribunal.

Current regulations and tribunal verdict

According to the Competition Act, the OCCP may conduct a search of undertakings' premises and belongings when there are reasonable grounds to suspect a serious infringement, in particular where evidence could be tampered with. The OCCP must submit a request in order to receive consent to conduct a search and get a search warrant from the Circuit Court. However, the court's ruling in this regard (ie, a ruling authorising the search) could not have been appealed again before the higher court. The undertaking subjected to a search may have only filed a complaint with the Circuit Court regarding search-related activities that exceeded the subject matter of the search or other search-related activities conducted in infringement of the law.

According to the Constitutional Tribunal, the provision of the act pursuant to which there was no possibility to challenge consent to search before the Court of Appeals was inconsistent with the Constitution. Namely, it violated Article 78 (which states that each party has the right to appeal against judgments and decisions made at the first stage) in conjunction with Article 45.1 (according to which all parties have the right to a fair and public hearing of their case before the courts).

The tribunal emphasised that searched undertakings do not take part in proceedings before the Circuit Court and therefore cannot comment on the arguments that the OCCP presents when requesting a search warrant. As the possibility to appeal against the Circuit Court's consent is excluded, there is no procedure under which a higher court can examine whether a search was justifiable, necessary or proportionate.

The tribunal explained that the higher court's control in this regard should be performed ex post in order not to eliminate the surprise nature of searches. However, at the same time, the tribunal suggested that a positive outcome (for the complaining undertaking) of the higher court's review should result in excluding the evidence collected during such searches from case files.

Comment

The direct result of the Constitutional Tribunal's judgment will be an amendment to the Competition Act to provide searched undertakings with the possibility to appeal against Circuit Court consent to conduct searches.

To date, the Circuit Court's decisions regarding searches had generally been favourable to the OCCP (there is no publicly known case in which the competition authority's request for a search warrant has been rejected). It will be interesting to see whether the additional scrutiny of the Warsaw Court of Appeals will change the OCCP's and Circuit Court's practice in this regard.

This article first appeared on International Law Office.

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Pawel Kulak

Pawel Kulak

Attorney at Law

T: +48 22 223 09 19
p.kulak@schoenherr.eu

legal service:

eu & competition

country:

poland