On 29 May 2017, the Supreme Court handed down judgment in the case between CRH and its subsidiary, Irish Cement Limited (Irish Cement) against the Competition and Consumer Protection Commission (the CCPC).

The case relates to documents seized by the CCPC during a dawn raid on Irish Cement in May 2015. The CCPC conducted the raid in exercise of powers under the Competition and Consumer Protection Act 2014. The raid was part of a CCPC investigation into alleged abuses of dominance in the Irish bagged cement sector.

During the raid, the CCPC took a copy of the entire crh.com email account of Mr Seamus Lynch, a senior executive in CRH. Irish Cement alleged that certain of the emails were outside the scope of the CCPC’s search warrant. Under Irish law, there is no statutory provision, in relation to materials seized in the context of a dawn raid, for determining the relevance of the materials. Irish Cement’s solicitors suggested a review process whereby all of the material seized could be reviewed by an independent third party lawyer for relevance. The CCPC declined to engage with Irish Cement’s solicitors and took the position that it was entitled to review all of the emails seized itself.

Irish Cement sought an injunction restraining the CCPC from reviewing the emails before the High Court. In a judgment handed down in April 2016, the High Court agreed with the Plaintiffs that a significant portion of the emails seized did not fall within the scope of the CCPC’s search warrant. It held further that if the CCPC were to engage in a review of the material, that this would constitute a breach of the Plaintiff’s rights to privacy under EU and Irish law.

The CCPC was granted leave by the Court of Appeal to appeal the High Court judgment directly to the Supreme Court.

In three separate judgments, the Supreme Court dismissed the CCPC’s appeal in entirety. The Supreme Court judgments give particular consideration to rights of privacy under the Irish Constitution and under Article 8 of the European Convention on Human Rights. The Supreme Court was highly critical of the CCPC, and described the CCPC’s search as disproportionate and “an unnecessary, irrational, incursion which went well beyond what should have been the objective sought to be achieved” (MacMenamin, paragraph 74). It recommended that the CCPC consider developing a Code of Practice for future similar cases.

In a statement issued on 29 May 2017, the CCPC stated that it is carefully considering the Supreme Court judgments and assessing their implications for the CCPC’s search powers.