Sunday 23 October 2016

Seized CRH information cannot be used in competition authority probe

Tim Healy

Published 05/04/2016 | 18:10

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CERTAIN information seized in an investigation into alleged anti-competitive practices in the cement industry - including emails of a senior CRH executive - cannot by used by the competition authority, the High Court ruled.

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The materials were taken by officers of the Competition and Consumer Protection Commission (CCPC) following an unannounced dawn raid at the Irish Cement Ltd (ICL) plant at Platin, near Drogheda, on May 14, 2014.

Irish Cement is a subsidiary of CRH.

In a judgment today, Mr Justice Max Barrett said the CCPC was not entitled to take or use in any way certain materials seized.

The search was conducted as part of an investigation into alleged anti-competitive practises in the production and supply of bagged cement products sector in the State.

The raid was carried out after the commission obtained a search warrant under the 2014 Competition and Consumer Protection Act.

When seeking the warrant, the CCPC told the District Court it had formed the opinion that ICL, from January 2011 to the date the warrant was sought, may have engaged in abuse of a dominant position in relation to the supply of bagged cement.

ICL, CRH Plc. and Seamus Lynch, a senior executive within the CRH group, brought a High Court action arising out of the raid.

They claimed the CCPC officers were not entitled to seize, retain or trawl through any electronic files within a email account of Mr Lynch which were unrelated to the business and activity of ICL.

Mr Lynch left ICL iN 2011 to join CRH. When the search was carried out, he was managing director of CRH Europe (Ireland and Spain). The warrant authorising the search only entitled the CCPC to seize documents related to ICL.

By seizing the data, the CCPC had breached provisions of the Data Protection Acts, constitutional rights to privacy, European Convention on Human Rights and Charter of Fundamental Rights of the EU, it was claimed.

The CCPC opposed the action and also gave an undertaking not to go through the material seized until after the court had given its decision.

Mr Justice Barrett found certain materials taken in the raid "fell outside the scope" of the search warrant obtained by the CCPC.

The plaintiffs were entitled to an injunction restraining the CCPC from accessing, reviewing or making any use of that material.

They were entitled to a declaration it acted outside of its powers and the scope of a search warrant in seizing books, documents and records unrelated to activity in connection with the business conducted at ICL's premises.

He did not grant declarations there had been a breach of their rights.

The case was adjourned to allow the sides consider the decision.

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