By a judgment rendered on the 18th of March 2025 in the case BRD – Groupe Société Générale v. Romania (no 38798/13), the European Court of Human Rights (“ECtHR”) had the opportunity to specify the requirements of the judicial review of inspections that are conducted without obtaining an ex ante judicial authorisation. The findings of the ECtHR are of high interest for EU competition law, as inspections on business premises do not require the Commission to obtain a prior judicial authorisation, save where it is mandated by the national law of establishment of the undertaking subject to the inspection (Art. 20(7) of Regulation 1/2003). As it will be shown, the findings of the ECtHR are aligned with those of the Court of justice of the EU (“CJEU” or the “Court”) in Les Mousquetaires (C-682/20 P).
We know from the previous judgment of the ECtHR in the case Delta Pekárny (no. 97/11) that the absence of an ex ante judicial authorisation to conduct inspections does not violate per se the right to respect for home as guaranteed by Article 8 of the European Convention for Human Rights (“ECHR” or the “Convention”). Nevertheless, compliance with Article 8 ECHR requires that the absence of a prior judicial authorisation must be balanced by an effective ex post facto judicial review.
In Groupe Société Générale, the applicant argued that such an effective review lacked for two reasons: (i) Romanian law does not provide for a specific avenue to challenge the decisions taken during inspections, and (ii) the Romanian courts did not adequately examine its complaints. The ECtHR rejected these arguments and found no violation of Article 8 of the Convention.
On the first leg, the ECtHR noted that, under the Romanian competition proceedings law, it is possible to contest the validity of the inspection decisions at the end of the investigation (§112). In addition, under the Romanian general administrative proceedings law, it is possible to challenge any administrative decisions (§112). The latter remedy is open to inspection decisions, enabling the applicant to obtain a judicial review before the end of the investigation – and the applicant made use of this avenue to challenge the legality of the inspection immediately after it occurred (§113). The ECtHR concluded that the absence of a specific avenue to challenge the inspection decision does not violate Article 8 of the Convention, as the remedy provided for by the general administrative proceedings law may be sufficient to obtain an effective judicial review (§116). In short, the ECtHR does not adopt a formalist approach; what really matters is the existence of an avenue, irrespective of whether it is specific (or not) to competition proceedings.
On the second leg, the ECtHR insists on the scope of the review made by national courts. The review of the legal basis is not sufficient; it must also encompass an assessment of the scope and proportionality of the inspection (§114). To find that the judicial review made by the Romanian court was sufficient, the ECtHR noted three elements (§114). First, the national court examined the file of the competition authority to verify the existence of suspicions that documents could be found on the premises inspected. Second, it assessed the choice of the inspection among the different investigation powers and concluded that it was appropriate in view of the severity of the alleged breach of competition law. Third, the national court, while reviewing the proportionality, noted that the applicant did not substantiate any damage resulting from the inspection. All in all, the findings of the ECtHR in Société Générale are in line with Delta Pekárny: the case law is consistent in that regard.
From an EU Law perspective, the findings of the ECtHR will probably not entail a deviation from the case law of the Court. Indeed, in Les Mousquetaires, the General court, confirmed by the Court, concluded that there were six remedies available to undertakings willing to challenge a decision relating to an inspection (see, para. 44 of the Court’s ruling and paras. 90-98 of the General Court’s judgement). For both the CJEU and the ECtHR, the absence of a specific avenue does not infringe per se the right for respect for home. As far as the level of scrutiny is concerned, it appears that the EU judicature is also aligned with the ECtHR. In Les Mousquetaires, the Court mentions Delta Pekárny and considers that the judicial review of decision taken in the context of an inspection shall be both in fact and in law and the remedy must be able to provide an appropriate redress to the applicant.
Co(E)mpetition Procedure 