Digital Evidence Gathering in Dawn-Raids -- Judicial Review -- Up-Front or Retrospective?
17 Pages Posted: 17 Sep 2013 Last revised: 18 Sep 2013
Date Written: April 4, 2013
At what stage in proceedings should there be a right to judicial review when large amounts of data are copied or mirrored electronically during surprise inspections of companies suspected of competition law infringements? Practices are being developed by the Commission and by national authorities to gather digital data and bring it to the competition authority’s premises for extensive analysis. Such analysis includes the use of keywords, indexing and searching mechanisms through forensic software. The process can take anything from a few days to several months.
The General Court judged in Nexans and Prysmian that appeals against such practices were inadmissible at the preliminary-inquiry stage and could only be considered when brought together with an appeal against a final decision in the case. The judgment in Nexans is under appeal. However, recent case-law from the European Court of Human Rights (ECtHR) can be interpreted as following a different path. The problem outlined above can appear not just before the EUCJ but also before Member State courts.
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