knowledge | 6 January 2016 |

Challenge to Seizure of Documents by Irish Competition and Consumer Protection Commission in the Course of a Dawn Raid

In proceedings that will be of interest to both regulators and those in industry alike, a number of plaintiffs have launched an action in the High Court challenging the seizure of certain documents by the Irish Competition and Consumer Protection Commission during a dawn raid carried out by that body.

Under the Competition Act 2002, the Irish Competition and Consumer Protection Commission (“CCPC”) is responsible for investigating and, with the Director of Public Prosecutions, prosecuting suspected competition law offences. To assist in this regard, duly appointed authorised officers of the CCPC may, without warning, conduct searches on companies where a search warrant has been granted by the District Court. Such warrants may be granted where there are reasonable grounds for believing that information necessary to the relevant investigation (in this case an investigation into alleged breaches of competition law) is to be found at the relevant location. Typically, authorised officers will be accompanied by Gardaí on such raids.

On production of a valid search warrant, authorised officers may enter premises, if necessary using reasonable force, and carry out a search. In addition to other extensive powers, authorised officers may examine, seize, take copies and retain books, documents, or records (including, for example, correspondence, meeting minutes, emails, telephone records and diary entries).

Earlier this year, as part of an investigation into alleged anti-competitive practices in the bagged cement sector, authorised officers of the CCPC carried out a dawn raid at the premises of Irish Cement Ltd (“ICL”), a manufacturer in that sector. ICL is a subsidiary of CRH plc (“CRH”).

CRH, ICL and a senior executive at CRH, who all deny breaches of competition legislation, have recently commenced proceedings in the Irish High Court against the CCPC in connection with the dawn raid. It appears that it is alleged by the plaintiffs that, as part of the search, authorised officers removed documents unrelated to ICL and falling outside the scope of the CCPC’s investigation and the warrant obtained by it. It is understood that the plaintiffs are, inter alia, seeking declarations that the CCPC acted outside of its statutory powers and the ambit of the search warrant.

As a preliminary measure, the plaintiffs sought an injunction, pending the trial of the action, restraining the CCPC’s review or reliance on certain material seized. This aspect of the case did not however proceed as the CCPC gave certain undertakings to the court.

The case is now listed for four days of hearing in March 2016 in the Competition List of the High Court. This is a division of the High Court, established in 2005, with specially assigned judges and case management procedures to allow competition disputes to be processed in a timely and efficient manner.

This briefing is for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.

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