The Supreme Court will try limitations on judicial review of decisions regarding which documents to copy under a dawn raid.
Under the Competition Act, claims that a document is covered by legal privilege may be assessed by the courts. However, no equivalent possibility of judicial review exists for documents that allegedly fall outside the scope of dawn raid warrants.
The question remains as to whether the lack of judicial review of such decisions is compatible with the European Convention on Human Rights and EU law.
The insurance broker Söderberg & Partner (as well as other parties) was subject to a dawn raid in April 2017.
The Competition Authority made forensic copies of digital material which, with Söderberg & Partner's consent, was taken to the authority's premises in order to conduct the search.
On September 20 2017 the Competition Authority, having conducted the search, copied certain documents from the digital material to the case file.
Söderberg & Partner appealed the Competition Authority's decision on the grounds that some of the copied material did not fall within the scope of the dawn raid warrant. The number of documents copied to the case file amounted to 13,700 and Söderberg & Partner claimed that most of the documents did not fall within the scope of the warrant.
The Patent and Market Court dismissed the appeal and found that the Competition Authority's decision to copy material under a dawn raid may not be appealed without clear support in the law.
Söderberg & Partner's appeal was also dismissed by the Patent and Market Court of Appeal, which held that a system for judicial review already existed under Swedish law and that, following an objection to the decision to take a copy of specific documents, the Competition Authority should seek assistance from the Enforcement Authority, which would then issue an enforcement decision to transfer the document to the Competition Authority. Enforcement Authority decisions may be subject to court review.
The Patent and Market Court of Appeal denied that the European Convention on Human Rights, the Charter of Findamental Rights of the European Union or EU law confer a more extensive possibility for parties to appeal the Competition Authority's decision to copy material during a dawn raid than the existing system.
The Patent and Market Court of Appeal's decision has been appealed and the Supreme Court has granted a leave to appeal.
The case raises interesting points. For example, in Sweden, there are virtually no restrictions on the admissibility of evidence – parties may rely on any evidence that they consider relevant when attempting to prove their case. Generally, evidence that has been accessed illegally may be brought forward in court proceedings.
As practitioners have been discussing the lack of judicial review for years, the Supreme Court's ruling is highly anticipated.
For further information on this topic please contact Ulrica Salomon, Hanna Lekås or Johanna Svantesson at Advokatfirman Lindahl by telephone (+46 8 527 70 800) or email ([email protected], [email protected] or [email protected]). The Advokatfirman Lindahl KB website can be accessed at www.lindahl.se.
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