The Competition Tribunal asked the Court of Justice of the European Union (CJEU) to clarify whether, in light of the EU Charter of Fundamental Rights, professional documents transmitted by email are considered “correspondence”.
In a request for a preliminary ruling sent last Friday by the Santarém Competition, Regulation and Supervision Court (TCRS), consulted this Wednesday by Lusa, Judge Mariana Gomes Machado sent a set of three questions, taking into account the invocation of unconstitutionality in the seizure of email in appeals filed by companies in cases of anticompetitive practices filed by the Competition Authority (AdC).
Recalling that the TCRS has understood that the documentation seized by the AdC “does not constitute correspondence, as a fundamental right”, Mariana Machado wants the CJEU to clarify whether article 7 of the Charter of Fundamental Rights of the EU opposes the seizure of professional documents when these result from communications between company directors and employees via email, when prohibited practices are investigated. She also asks if the same article opposes confiscation with prior authorization from the Public Ministry (MP).
What is at stake is that the various appeals filed before the TCRS, in proceedings for anti-competitive practices, argue that the documentation seized in the companies’ email “constitutes correspondence” and that, in the event of seizure, it would have to be preceded by authorization from an investigating judge, because interference in the correspondence is at stake, and the intervention of the Public Ministry is not enough.
The ruling for a preliminary ruling to the CJEU follows a decision by the Constitutional Court (TC), in a case addressed to Jerónimo Martins, which considered the seizure of emails by the Competition Authority with an order from the Public Ministry unconstitutional.
In a judgment of March 16, whose rapporteur was the advisory judge Joana Fernandes Costa, the TC upheld the appeal filed by Jerónimo Martins and Pingo Doce — Distribuição Alimentar against the decision adopted in March 2020 by the Lisbon Court of Appeal (TRL). .
In that sentence, the TRL had confirmed the understanding of the TCRS, which in June 2019 rejected the challenge of the search and seizure measures carried out by the AdC between February 7 and 27, 2017, based on an order issued by the PM. , within the framework of an administrative procedure for practices restrictive of competition.
In the sentence of last March, the TC declared unconstitutional the norm extracted from the Legal Regime of Competition, according to which, in a process of administrative infraction for a restrictive practice of competition, the AdC is allowed to search and hijack email messages opened with the authorization of the Public Ministry, determining that the TRL ruling is reformed.
With this decision, with the exception of the so-called “banking cartel”, in which the raids were carried out by an investigating judge (as determined by the Competition Law for banking sector institutions), processes such as those involving prisons may be in I play that of the large food and beverage distribution, the insurance cartel, that of private hospitals / ADSE, or that of laboratories related to covid-19 tests, with fines of millions of euros.
In the request sent to the CJEU, the TCRS wants it to be clarified if “the exercise of the powers of collection of evidence conferred on the Competition Authority, within the framework of the investigation of anti-competitive practices, carried out by companies, violates any fundamental right” .
Invoking the jurisprudence of the CJEU and the doctrine on the matter, the request underlines “the primacy of European Union law, whatever the statute and nature of national regulations, even if they are constitutional regulations”.
In the insurance cartel’s ruling, issued last Monday, Mariana Machado reaffirmed the understanding of the TCRS, ruling out the intention of Zurich and Lusitânia to apply the provisions of the Cybercrime Law, noting that this does not apply to infringement proceedings administrative, when the right to respect for family and private life is not questioned.
Source: Observadora
