The Supreme Court draws attention to lack of legal regulation for review of court cases related to actions performed by Executive Directorate of the Competition Council, when entering and carrying out a search in properties of legal entities of the market or their employees.  

Compilation of case-law performed by the Division of Case-law of the Supreme Court and conclusions and recommendations discussed at the general meeting of judges of the Department of Criminal Cases are sent to the Ministry of Justice and the Competition Council, so that they would assess necessity to make amendments to the Competition Law. Compilation of case-law is also sent for cognizance of the Prosecutor General and the Ombudsman.

Clause 4 Paragraph Five Section 9 of the Competition Law states that the Executive Directorate, when carrying out market supervision or conducting investigations of the violations of this Law or of the Advertising Law on behalf of the Competition Council, is entitled to on the basis of a judicial warrant, without prior notice and in the presence of police, to enter the non-residential premises, means of transport, flats, structures and other immovable and movable objects that are in the ownership, possession or use by a market participant or by an association of market participants, to open them and the storage facilities existing therein, carry out a forcible search of the objects and the storage facilities therein and perform an inspection of the existing property and documents therein including the information (data) stored on computers, floppy disks and other information media in an electronic information system.If there are justifiable grounds for suspicion that documents or property items that might serve as evidence of a violation of this Law are being stored in non-residential premises, means of transport, flats, structures and other immovable and movable objects in the ownership, possession or use of other persons, these activities may also be performed in relation to such persons.

The Department of Criminal Cases of the Supreme Court concluded that legal regulation for review of such cases in a court is missing at present and pointed out that in accordance with Section 32 of the law “On Judicial Power” review of application by the executive director of the Competition Council on permission to perform activities stipulated in Clause 4 and 5 Paragraph Five Section 9 of the Competition Law should be allocated to investigative judge, observing provisions of Section 91 of the Competition Law.

When giving a permission to perform above mentioned procedural actions, judge must indicate in his or her decision, what is justification of an application by the executive director on necessity to perform concrete actions, how much justifiable are doubts regarding location of evidence of violation in concrete premises. It must be indicated in written decision of a judge, where, with whom and what objects, documents or information shall be searched for and withdrawn, to the extent it is ascertained.  In the decision, the judge must also determine term of execution of procedural actions, namely, the date actions are accepted to.

To get familiarised with case-law and elaborate recommendations on application of Clause 4 and 5 Paragraph Five Section 9 of the Competition Law in a court, the Riga city Vidzeme suburb court provided materials of 13 cases on applications of Executive Directorate of the Competition Council regarding permission to perform procedural actions for research. 12 from among those cases were reviewed in 2013, and one case – in 2014.  

 

 

One may get familiarised with compilation of court decisions “Application of Clause 4 and 5 Paragraph Five Section 9 of the Competition Law”  on the web site of the Supreme Court www.at.gov.lv in section Judicature/Compilations of court decisions/Criminal law