Supreme Court limits investigation’s access to emails of senior CRH executive

The Competition and Consumer Protection Commission cannot examine all 100,000 emails of a senior executive of cement giant CRH copied by it following a "dawn raid" as part of an investigation into alleged anti-competitive practices, the Supreme Court has ruled.

The commission's search was lawful and it is entitled to lawfully proceed with its investigation but may only examine such emails of Seamus Lynch as are relevant to that investigation, Mr Justice Peter Charleton ruled.

There was no need for the commission to hold on to irrelevant material and it might consider developing a code of practice for future similar cases, he added.

The emails were among materials taken by officers of the commission after its unannounced early morning raid at the plant of Irish Cement Limited, a subsidiary of CRH, at Platin, Co Meath, on May 14th, 2014.

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The search was carried out under a warrant granted by the District Court under the 2014 Competition and Consumer Protection Act. The commission sought the warrant after saying it had formed the opinion ICL, from January 2011 to the date of the warrant, may have engaged in abuse of a dominant position in relation to the supply of bagged cement in the State.

ICL, CRH Plc and Seamus Lynch later took proceedings alleging commission officers were not entitled to seize, retain or trawl through any electronic files within a crh.com email account of Mr Lynch unrelated to the business and activity of ICL. Mr Lynch left ICL in 2011 to join CRH and, at the time of the search, was managing director of CRH Europe (Ireland and Spain).

The plaintiffs argued the warrant only entitled the commission to seize documents related to ICL. By seizing other data, the commission breached their privacy and other rights under the Constitution, Article 8 of the European Convention on Human Rights and the Charter of Fundamental Rights of the EU, they argued.

The commission denied those claims but undertook not to go through the material until the courts decided the matter.

In the High Court last year, Mr Justice Max Barrett found certain materials seized fell outside the scope of the search warrant and granted injunctions restraining the commission accessing, reviewing or making use of the material seized. He also held, if the commission sought to access, review or use the documents, that would breach Article 8.

Three judgments

In three separate judgments on Monday, the five-judge Supreme Court dismissed the commission’s appeal over the High Court decision.

Mr Justice Charleton said the search was lawful and the material seized could be taken off site. The focus of the appeal was on the emails of Mr Lynch, he said. While this was a business email address, the problem was the scope of seizure of an entire email account of thousands of mails without justification for such “ample and undifferentiated seizure”.

While the seizure of the computer was proportionate and the need to examine what was on it was justified by the nature of the investigation, the commission and CRH/Lynch side now needed to agree a procedure to isolate private emails of Mr Lynch’s from any emails relevant to the commission’s investigation, he said.

Outlining a number of recommendations as to how that might be done, he said CRH and Mr Lynch might identify what private material of his has been copied by the commission and set out why that is so sensitive as to require protection of his privacy rights under Article 8.

He, the Chief Justice Susan Denham and Ms Justice Elizabeth Dunne also endorsed Ms Justice Mary Laffoy's separate findings concerning Article 8. Ms Justice Laffoy held, because the commission had not accessed the emails, there was no breach of Article 8 rights.

In his judgment also dismissing the appeal, Mr Justice John MacMenamin ruled the search was unlawful and the commission was therefore not entitled to access any of the materials seized. The commisison acted outside its powers under the Competition and Consumer Protection Act 2014 and breached the constitutional and Article 8 rights to privacy of CRH and Mr Lynch, he held.

The commission had also not acted in accordance with its obligations under the European Convention on Human Rights Act 2003.