The Court of Justice of the European Union has clarified that, in the context of an antitrust investigation, national competition authorities may, in principle, access and seize professional emails exchanged between employees and company officers even in the absence of prior judicial authorisation, provided that national law lays down strict limits governing the exercise of investigative powers and provides effective safeguards against abuse and arbitrariness.

The judgment in Joined Cases C-258/23, C-259/23 and C-260/23 arose from inspections carried out by the Portuguese competition authority at companies suspected of infringing Articles 101 and 102 TFEU. The companies challenged the seizure of electronic communications, arguing that such measures required prior authorisation by a court.

The Court first clarified that professional emails fall within the concept of “communications” protected by Article 7 of the Charter of Fundamental Rights of the European Union and that their examination and seizure also interfere with the right to the protection of personal data guaranteed by Article 8 of the Charter. The professional nature of the correspondence does not, therefore, remove it from the scope of fundamental-rights protection.

Such interference may nevertheless be justified where it is provided for by law, pursues an objective of general interest and complies with the principles of necessity and proportionality. In particular, the acquisition of communications must be limited to material relevant to the investigation and must be accompanied by appropriate procedural safeguards, including the availability of effective ex post judicial review.

The Court nevertheless draws an important distinction where the investigation concerns personal devices belonging to company officers or employees, such as smartphones or computers also used for private purposes. Access to such devices may entail a particularly serious interference with private life and therefore requires, according to the Court, prior review by a court or an independent administrative body.

The judgment has significant practical implications for companies subject to antitrust inspections: corporate communications may constitute a primary source of evidence and their seizure is not necessarily precluded by the absence of prior judicial authorisation. At the same time, the authorities’ investigative powers must be exercised within a clearly defined, proportionate and reviewable framework, with enhanced safeguards where investigative measures extend to personal devices and information unrelated to the professional sphere.