As we are celebrating this year the 800th anniversary of the signing of Magna Carta, it was encouraging to see the European Court of Human Rights in the recent case of Delta Pekárny(1) applying the very same principles of restraint of power by law and legal oversight that were established beside the River Thames eight centuries ago.
In Delta Pekárny case, the Czech Competition Authority had carried out a dawn raid as part of its investigations into a bakery cartel. The raid, under Czech rules at the time, was carried out without any legal supervision by the Czech judiciary. The applicable Czech law required no prior judicial authorisation for the raid and provided for no effective post-inspection legal review. The Authority subsequently imposed fines on the company.
After years of unsuccessful appeals through the Czech court system against the findings of the Competition Authority, Delta Pekárny finally appealed to the European Court of Human Rights (“ECHR”) on the grounds that the inspection of its premises without proper legal supervision was a breach of Article 8 (right to respect for a private life) of the European Convention on Human Rights.
The ECHR agreed with the company, ruling that Article 8 in effect required adequate and effective national safeguards to be in place in the national law. These safeguards, it held, should include provision for pre-raid authorisation or post-raid review by an independent court; and, where pre-raid authorisation had not occurred, the more thorough and detailed should be the available post-raid review.
For those with a taste for legal history, in June 1215 the not-so-great King John of England was forced by the leading English barons of the day to sign Magna Carta (‘the Great Charter’), an inaugural declaration of civil liberties and major leap forward in the fight against tyranny. Here is an extract from it (taken from a translation on the website of the British Library):
“If We [the King], our chief justice, our officials, or any of our servants offend in any respect against any man, or transgress any of the articles of the peace or of this security, and the offence is made known to four of the said twenty-five barons, they shall come to us – or in our absence from the kingdom to the chief justice – to declare it and claim immediate redress. If we, or in our absence abroad the chief justice, make no redress within forty days, reckoning from the day on which the offence was declared to us or to him, the four barons shall refer the matter to the rest of the twenty-five barons, who may distrain upon and assail us in every way possible, with the support of the whole community of the land, by seizing our castles, lands, possessions, or anything else saving only our own person and those of the queen and our children, until they have secured such redress as they have determined upon. Having secured the redress, they may then resume their normal obedience to us“. (2)
The barons may only have been out to protect their own interests against a would-be tyrant; but the principles they established have proved universally helpful. And this milestone ECHR ruling could, too, prove potentially helpful to those who feel unjustly treated by competition regulators, who, in some jurisdictions, are regarded as being detective, judge, jury and executioner all rolled into one. So, although human rights law and competition law rarely overlap, the Delta Pekárny case is a salutary reminder to those in trouble with competition law authorities that the remit of the European Convention on Human Rights – like Magna Carta before it – is wide indeed.
(1) Delta Pekárny A.S.v Czech Republic, ECHR 279: Judgement dated 2 October 2014