Judicial Review of Decisions Relating to Inspections of the President of the Polish Office of Competition and Consumer Protection – Between the Judgment of the European Court of Human Rights in Case Delta Pekárny v. The Czech Republic and the Judgement of the Polish Constitutional Tribunal of 16 January 2019 in Case P 19/17

Abstract

The article discusses a recent legal change in relation to inspections conducted by the Polish Office of Competition and Consumer Protection (the “OCCP”) in light of the standards of procedural safeguards that should be available to companies during inspections of competition authorities as described by the European Court of Human Rights (the “ECtHR”) in case Delta Pekárny v. the Czech Republic. During inspections the OCCP could obtain access to documents unrelated to the subject of the proceedings, including private documents. This may lead to the infringement of the right to respect for private and family life protected under Article 8 of the European Convention on Human Rights (the “Convention”). In light of the Delta Pekárny judgment, decisions about the initiation of the inspection of competition authorities should be subject to effective judicial review. The judicial review should take place either prior to inspection or thereafter (ex post facto). The goal of the article is to verify the consistency of procedural safeguards during controls and searches conducted by the OCCP with the standards of protection in the Delta Pekárny judgement.