Commission’s dawn raids of Deutsche Bahn’s premises were illegal because improperly discovered documents triggered the action.

Summary -

On 18 June 2015, the Court of Justice of the EU (ECJ) partly allowed Deutsche Bahn’s (DB’s) challenge to the Commission’s decisions to conduct inspections of DB’s premises in 2011. The ECJ confirmed the Commission’s ability to conduct dawn raids without judicial authorization, but annulled two follow-up Commission inspections triggered by documents improperly discovered during the initial inspection: since the initial inspection decision failed to refer to an additional potential infringement known to Commission officials conducting the inspections, DB’s rights of defence were infringed. Following this judgment, legal advisers should be able to insist on shadowing Commission officials during a dawn raid, so as to ensure that officials are acting within the scope of the inspection decision. Understanding what the officials are looking for and questioning search strategies that do not appear to be covered by the inspection decision, will be key to safeguarding raided companies’ rights of defence.