This Article aims to provide an overview on the recent preliminary reference initiated by the Portuguese Competition Court within the purview of various legal proceedings pertaining to decisions rendered by the Portuguese Competition Authority (“PCA”), all in the context of antitrust procedures.
These decisions dismissed numerous procedural invalidities and irregularities alleged by three different companies following apprehensions and investigations of electronic messages conducted by the PCA and previously authorized by the Public Prosecutor’s office, with a view of gathering evidence of Competition Law infringements in violation of Articles 101 and 102 TFEU, and Articles 9 and 11 of the Portuguese Competition Law.
In accordance with the Portuguese Competition Law (Law n.º 19/2012), the PCA has the power to conduct the analysis, collection, and apprehension of documents, regardless of their format, provided such proceedings are authorized by the proper “Judiciary Authority”.
The companies subject to the apprehensions challenged their validity before the Portuguese Competition Court, primarily on the basis that the seized documents should fall under the concept of “correspondence”.
This argument stems from the fact that the Portuguese Competition Law in Articles 18(c) and 20(1) only expressly provides for the apprehension of “documents”, prompting discussions within the Portuguese legal system about the concept of “mere document” and “correspondence” and the guarantees associated with the two classifications.
Until very recently, the Portuguese Courts had held in general, with few exceptions, that the documentation obtained by the PCA as a result of electronic communications already received/read by the recipient did not qualify as “correspondence”, given that the PCA did not interfere with the communication process.
Therefore, they were not entitled to a higher level of protection, in light of Article 34 of the Portuguese Constitution, which only allows judicial interference in correspondence in criminal proceedings and provided that such interference is authorized by the proper “Judicial Authority”, in the case, the Juiz de Instrução, i.e. a judge with powers to supervise the criminal investigations. Hence, the legality of apprehensions of “documents”, insofar they were authorized by the Public Prosecutor’s Office, was continuously validated by the Portuguese Courts.
However, in two different rulings rendered in March and April of 2023, the Portuguese Constitutional Court, departed from this judicial trend, by ruling that the distinction between open/read and closed/unread emails was irrelevant, as both categories are “correspondence” and, as such, requiring the same level of constitutional protection as stipulated by Article 34 of the Portuguese Constitution.
This higher Court ruled that an email retains constitutional protection as long as it is stored in a place where only the recipient of the message has access, contending that the apprehension of such electronic messages requires validation and authorization from the Juiz de Instrução.
Consequently, in the two cases at hand, the interpretation of the Portuguese Competition law, suggesting the Public Prosecutor’s office as the competent authority to authorize the apprehension of emails, was deemed illegal and invalid.
These Constitutional Court decisions hold substantial importance, given that abstract reviews of the unconstitutionality of a rule can be requested when the Constitutional Court deems it unconstitutional in specific instances.
Considering this context, the Portuguese Competition Court decided to refer several questions to the Court of Justice seeking, in essence, whether the apprehension of emails carried out by the PCA, previously authorized by the Public Prosecutor’s office without the interference of the Juiz de Instrução is aligned with the EU laws, including with Article 7 of the Charter of Fundamental Rights of the European Union.
In detail, the questions issued by the Portuguese Competition Court in this preliminary reference were the following:
“1. Are the professional documents in question, sent via email, “correspondence” within the meaning of Article 7 of the Charter of Fundamental Rights of the European Union?
- Does Article 7 of the Charter of Fundamental Rights of the European Union preclude the apprehension of professional documents resulting from communications between company directors and employees via email addresses, when the investigation is concerned with agreements and practices prohibited under Article 101 of the TFEU (formerly Article 81 of the EC Treaty)?
- Does Article 7 of the Charter of Fundamental Rights of the European Union preclude the apprehension of such professional documentation, with the prior authorization of a judicial authority, in this case the Public Prosecutor’s Office, which is responsible for representing the State, defending the interests determined by law, exercising criminal action guided by the principle of legality and defending democratic legality, under the terms of the Constitution, and which acts autonomously in relation to the other bodies of central, regional and local power?”
The undertakings targeted in the anti-trust proceedings invoked different lines of argumentation. In essence, all recognize that EU law does not impose a specific entity to conduct these proceedings and, thus, in so far as the principles of equivalence and effectiveness are respected, it is up to the internal legal order of each Member State to designate the competent authorities (judicial or other) required to specifically authorize the apprehensions of the emails (correspondence). That is the direct consequence of the herein applicable principle of procedural autonomy of Member States.
In this context, the undertakings likewise underline that the level of protection they claimed – the need of the intervention of a Judge – does not compromise the level of protection afforded by the Charter and, in fact, is more protective of the fundamental rights at stake.
In summary, the undertakings targeted claim that if in this issue the Member States have procedural autonomy, their actions are not entirely determined by the EU law. Given that the Portuguese solution requiring the intervention and authorisation by the Juiz de Instrução, supported by the Constitutional Court, does not jeopardise the level of protection of the Charter, nor the primacy, unity and effectiveness of EU law, it is a valid solution conforming with UE laws.
The outcome remains uncertain. The Court of Justice could adopt a more conservative stance, asserting that this issue falls within the purview of national laws due to the procedural autonomy of Member States. Alternatively, it may take a more interventionist approach by offering a set of guidelines for the referring court to follow, opening the door for upholding the legality of the apprehension of the emails by the Public Prosecutor’s Office and, consequently, the sanction decisions issued by the PCA in the past.
This preliminary reference marks another step in the ongoing struggle of companies targeted in anti-trust proceedings, now fortified with a clear stance and support from the Constitutional Court, against the unlawful apprehension of emails.
If the Constitutional Court issues another ruling in a specific analogous case, declaring that the interpretation and practice endorsed by the Portuguese Competition Authority, supported in the apprehension of emails authorized by Public Prosecutor’s Office, the contradicts the Constitution, it will render that interpretation unconstitutional with binding and general force.
This outcome would invalidate all emails seized without the involvement of the Juiz de Instrução in the context of pending anti-trust proceedings, deeming them as inadmissible evidence. Given that a substantial portion of the evidence in these proceedings is comprised of emails, it seems obvious that the majority of PCA’s decisions currently challenged under the various appeal cases would become highly uncertain, to say the least.
As of the moment, the appeal cases are stayed awaiting the finale of this ultimate deadlock.
Lisbon, January 2024
Armando Martins Ferreira / João Nobre Garcia / Mariana Costa Pereira