Dawn raids and the right to privacy : A comparative study of how the European Convention of Human Rights, the European Union and Finland protect companies’ right to privacy in unannounced competition authority inspections

This thesis is a comparative study of how the European Convention of Human Rights, the European Union and Finland protect companies’ right to privacy in unannounced competition authority inspections. More precisely, it aims to establish the current scope of companies’ right to privacy under Article 8 of the European Convention of Human Rights and to assess if the European Union and Finland meet this standard. The key points of interests are the definition of the right from the perspective of companies, the limitations it sets to competition authorities, and the safeguards required to ensure that the right to privacy is respected. Article 8 of the European Convention of Human Rights is drafted to protect natural and legal persons from arbitrary actions of public authorities. This protection takes various forms. Pursuant to the wording of the article, the right to respect to private and family life, home and correspondence is protected. The article employs concepts that at the level of everyday language seem best suited for natural persons. During the past three decades, the European Court of Human Rights has interpreted the article as granting protection also to legal persons, companies included. The concept of home has been extended to business premises and the concept of correspondence to confidential communications between a lawyer and a company client. However, the Court has reserved contracting states a wider margin of appreciation regarding the rights of legal persons. This interpretation of Article 8 of the European Convention of Human Rights entails that unannounced competition authority inspections interfere, by their nature, with companies right to respect to home and, depending of the materials under inspection, also with the right to respect to correspondence. An interference does not amount to a violation of the article, but it triggers a number of safeguards to ensure that the interference is necessary and proportionate. The European Court of Human Rights has established in its case-law that all interferences with rights protected under Article 8 should be subject to prior judicial authorization or a posteriori judicial review. Other safeguards depend on the individual circumstances of each case, but judicial review has been established as an absolute requirement. This means that in competition authority inspections, both the inspection decision and the authority measures during an inspection should be subjected to judicial review. In Finland, this is not the case. Competition Act sets out a prohibition against appeal of the inspection decision. The inspection decision and the measures taken during an inspection may be appealed only if the Finnish Competition and Consumer Authority makes a proposition of a penalty payment to the Market Court. This entails that all interferences with companies’ right to privacy under Article 8 of the European Convention of Human Rights are not subject to judicial review. As a contracting party to the Convention, Finland is under the obligation to comply with relevant interpretations of the Court. The requirement of judicial review appears to be one. The Finnish Government is preparing a reform of the Competition Act, whereby this question could be addressed as a part of the reform. The Report of the Working Group of the reform, which is addressed in this thesis, does not propose any improvements in this regard. The European Union, for its part, is not bound by the Convention. Nevertheless, the Convention still plays an important role in the European Union and it does contribute to the fundamental rights protection of companies in the European Union. This is the case particularly with Article 8 of the European Convention of Human Rights, as the fundamental right to privacy provided by Article 7 of the Charter of Fundamental Rights of the European Union should correspond to that provided by the Convention. In practice, the question is more complex. Companies may subject the inspection decisions of European Commission to judicial review but the possibility to appeal inspection measures is more limited. Thereby, the European Union does not either meet the standard set out by the Article 8 of the Convention