On Dec. 4, 2014, the Court of Justice of the European Union heard Deutsche Bahn's appeal against a September 2013 judgment by the General Court that 2011 inspections of its premises were legal.
Deutsche Bahn argued that EU inspection procedures were subject to insufficient oversight by the courts. The company stated that raids should be authorised by a judge prior to taking place, and argued that because opposition to an inspection could lead to substantial fines, there was no real right to oppose. Deutsche Bahn stated that any challenges to the legality and process of the raids would not repair the damage that they had suffered as a result of an unlawful raid, as officials would already have viewed any potentially incriminating evidence.
By contrast, the Commission pointed to several cases by which raids had been challenged in the European Court of Human Rights as evidence of judicial oversight of the process. The Commission argued that this post-raid review process would offset the fact that raids could be conducted without a court warrant.
Deutsche Bahn also presented arguments against the Commission's decision to brief officials on the possibility of finding material relevant to a potential competition offence that was not the primary target of the raid. The Commission had informed its officials that they may find evidence relating to a competitor's complaint about Deutsche Bahn's restriction of access to rail infrastructure, a complaint that was separate to the price investigation that was the original purpose of the raid. Deutsche Bahn argued that this unlawfully widened the scope of the raid. The Commission argued that it was important for officials to have the same information as the Commission in order to effectively complete their investigation. It was also maintained that the two issues, access to infrastructure and pricing concerns, stemmed from the same complaint and concerned Deutsche Bahn's control of the market, so it made sense for them to be investigated together.
On Feb. 12, 2015, Advocate General Nils Wahl issued his opinion in the case, which the judges at the Court of Justice are not obliged to follow. He stated that, given the lack of any clear relationship between the two suspected infringements and the acknowledgment by the Commission that the information given to its officials about the second infringement was not useful for the search related to the first infringement—deliberately or through negligence—the Commission circumvented the rules laid down to govern inspections, using an inspection to look for documents that concerned another, unrelated, matter.
Wahl's opinion can be found here.
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