As part of an investigation into anticompetitive practices, the Portuguese competition authority seized, from the premises of the undertakings under investigation, emails exchanged between the employees of those undertakings. The undertakings contested the seizure of emails, arguing that it should have been authorised by an investigating judge rather than by the Public Prosecutor’s Office. The Portuguese court hearing the cases referred the matter to the Court of Justice.

The Court considers that the seizures carried out constitute limitations not only on the right to respect for private and family life, but also on the right to the protection of personal data. Those limitations appear nevertheless to be justified by the general interest objective of preserving undistorted competition. They also appear to be proportionate. It follows that EU law does not, in principle, preclude legislation of a Member State under which, as part of an investigation into an alleged infringement of competition rules, the national competition authority seizes, at professional or business premises, emails the content of which relates to the subject matter of the inspection without having prior authorisation issued by a court.

However, in the absence of prior authorisation issued by a court, such seizures must be provided for by law, strictly limited and subject to full ex post judicial review. Furthermore, where documents are seized from mobile telephones, computers or other computer storage media used for both private and professional purposes, access to the data they contain may constitute a serious, or even particularly serious, interference with the fundamental rights at issue. In such cases, access to such data must be subject to prior review by a court or by an independent administrative body.