Key facts of the case:
A ‘dawn raid’ was undertaken at the premises of Irish Cement Limited at Platin, County Louth, by authorised officers of the Competition and Consumer Protection Commission (CCPC), acting pursuant to a search warrant. In the course of that raid, the officers took a copy of the entirety of the e-mail box of Mr Lynch, a senior executive within the CRH group, of which Irish Cement is part. The Court was ultimately satisfied on the balance of probabilities that some of the emails seized were not caught by the terms of the search warrant. In particular, the inbox contained emails and attachments unconnected to the business of Irish Cement and related instead to other CRH group companies with which Mr Lynch was involved. The central issue which arose in this case was what was to be done about those e-mails and attachments that the CCPC had in its possession.
The CRH applied to the High Court for a declaration that the CCPC had acted outside the scope of the search warrant and ultra vires and contrary to section 37 of the Competition and Consumer Protection Act 2014 and sought an injunction restraining the CCPC from accessing, reviewing or making any use whatsoever of the records seized which did not relate to an activity in connection with the business of supplying or distributing goods or providing a service at Irish Cement.
CRH also sought declarations that the CCPC had acted in breach of Article 8 of the ECHR, Articles 7 and 8 of the CFR, the plaintiff’s right to privacy under Article 40.3 of the Irish Constitution and the Data Protection Acts 1998 and 2003.
Outcome of the case:
The Court did not accept that the collection of material not covered by the terms of the search warrant was a breach of the plaintiff’s right to privacy but considered that a breach would occur if the CCPC were to proceed to review the material.
56. Certain arguments have been raised by the plaintiffs that their rights under the EU Charter of Fundamental Rights stand to be violated if the Commission should now get to review documents that are in its possession but which it is not entitled to possess. These arguments, like some Conor McGregor opponents, fall at the first. Article 51 of the Charter provides that: “The provisions of this Charter are addressed to the….Member States only when they are implementing Union law”; and the court is not confronted here with such an implementing measure. Pursuant to s.1(2) of the Act of 2014, the Competition Acts 2002 to 2012 and Parts 3 and 4 of the Act of 2014 may be cited together as the Competition Acts 2002 to 2014 and “shall be construed together as one Act”. However, the "..." within judgment is not concerned with Parts 3 and 4 of the Act of 2014. So to the extent that the Competition Acts 2002 to 2012, as amended and supplemented by Parts 3 and 4 of the Act of 2014, implement European Union law, the provisions under consideration in these proceedings are simply not a part of that corpus of legislation. And while s.37 is a provision that may facilitate the enforcement of, inter alia, European Union law, by empowering authorised officers to engage in searches and seizures whereby, inter alia, evidence of a breach of Article 101 and/or 102 of the TFEU may be obtained, to this Court’s mind s.37 nonetheless does not fall properly to be viewed as a statutory provision that is implementing European Union law, in the sense of realising some provision of European Union law in Ireland. Taking all of this into account, no argument as to contravention of the EU Charter can succeed in the present application.