General Court Clarifies Commission’s Powers to Conduct Dawn Raids

In a judgment of Sept. 6, 2013, the European Union General Court upheld the legality of unannounced inspections carried out by the Commission at Deutsche Bahn in 2011, confirming that the use of the Commission’s powers does not infringe the fundamental rights of the target and can be carried out without prior judicial authorisation.

Between March and July 2011, the Commission carried out unannounced inspections (or “dawn raids”) for suspected abuse by Deutsche Bahn of its dominant position in the market for rail-linked services, infrastructure and locomotive electricity. Deutsche Bahn appealed the Commission’s decision to carry out the inspections, alleging that that the Commission should have sought a court order before commencing the raids, and that the two later inspections were only carried out as a result of information found in the first and so amounted to mere “fishing expeditions.”

The General Court rejected Deutsche Bahn’s arguments entirely, stating that, according to the case law of the European Court of Human Rights, the absence of prior judicial authorisation does not invalidate an inspection where there are proper protective guarantees. The General Court also rejected the argument that that the inspections were “fishing expeditions,” stating that the Commission can thoroughly search offices and files even if there is no immediate suggestion that relevant information may be found there.

Deutsche Bahn has announced that it is considering whether to appeal the ruling. The judgment of the General Court can be found here.