On 5 April 2016, Justice Barrett of the High Court handed down an important decision concerning the conduct of electronic investigations by the Competition and Consumer Protection Commission ("CCPC") in Ireland.
The case arose out of a dawn raid conducted by the CCPC in May 2015 on the premises of Irish Cement Limited, located in Louth, Ireland. The company under investigation appealed the decision of the CCPC to electronically extract a copy of the complete email inbox of a senior employee. In part, the company sought a declaration that the CCPC acted ultra vires and outside the scope of the search warrant in seizing certain information. In a 71-page decision, the Court agreed to grant a declaration that, on balance, certain materials seized by the CCPC during its dawn raid were not covered by the terms of the search warrant – and were accordingly unauthorised.
The decision is significant in a number of respects. Firstly, the Court engaged in a detailed analysis of the relationship between an individual or company's privacy rights under Article 8 of the European Convention on Human Rights ("ECHR") and the application of the CCPC's search and seizure powers under Irish law. In effect, the Court found that while the CCPC had not yet breached Article 8 of the ECHR, a breach would arise if the CCPC proceeded to review seized data, some of which may contain material outside the scope of the search warrant. Secondly, the Court identified a legislative gap in the Irish rules as it was possible for the CCPC to collect material during a search which would fall outside of the scope of its investigation. Thirdly, the decision may prompt a review of similar search powers for statutory bodies under Irish legislation.
In a separate press release, the CCPC indicated that it is considering carefully the implications of the judgment and that its investigation into alleged anti-competitive practices by Irish Cement in the supply of bagged cement will continue. An appeal is expected.
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