Procedural Autonomy of the Member States and the Effectiveness of European Union Law: On the Need for Judicial Authorisation for the Search and Seizure of Electronic Correspondence in Proceedings Concerning Anti-Competitive Practices

Miguel Gorjão-Henriques and Alberto Saavedra, partners at  SÉRVULO's European and Competition Law Department, are the authors of the article “Procedural Autonomy of the Member States and the Effectiveness of European Union Law: On the Need for Judicial Authorisation for the Search and Seizure of Electronic Correspondence in Proceedings Concerning Anti-Competitive Practices”, published in the book “Legal Studies – 25 Years of SÉRVULO”.

The article examines the relationship between the principle of procedural autonomy of the Member States and the limits that the effectiveness of European Union law may impose upon it, in the context of the requirement for prior judicial authorisation for the search and seizure of electronic correspondence in proceedings concerning anti-competitive practices. Drawing on recent case law from the Portuguese Competition, Regulation and Supervision Court and on preliminary references submitted to the Court of Justice of the European Union, the authors analyse the position adopted by the Constitutional Court and the Supreme Court of Justice, according to which such a requirement derives from the Portuguese Constitution and the protection of fundamental rights. The article argues that this solution does not undermine the effectiveness of EU law; rather, it falls within the legitimate limits of national procedural autonomy.

This article forms part of the publication “Legal Studies – 25 Years of SÉRVULO”, contributing to the collection of analyses that celebrate the evolution, diversity and legal thought that have shaped the first twenty-five years of our Firm.