No out-of-scope principle in Danish dawn raids

Background

In November 2020, the DCCA carried out a dawn raid at the premises of ØnskeBørn A/S ("ØnskeBørn"), the head office of a voluntary chain of baby and children's stores. 

In the decision forming the basis for the dawn raid (the "Decision"), the DCCA stated that it suspected anti-competitive activities in the market for baby and children's goods and clothing, and that ØnskeBørn A/S might be involved in these activities. The Decision specifically referred to several consumer complaints received over a number of years, claiming that suppliers generally imposed fixed resale prices on retailers. The decision referred to Section 6 of the Danish Competition Act (the "DCA") and Article 101 of the Treaty on the Functioning of the European Union (the "TFEU"), which prohibit agreements between undertakings that have as their object or effect the restriction of competition. Prior to conducting the dawn raid, the DCCA had obtained a court order based on the Decision. 

Based on the evidence found during the dawn raid, the DCCA further suspected that ØnskeBørn and the members of the chain had infringed Section 6 of the DCA/Article 101 of the TFEU by coordinating prices. Pursuant to competition law, the individual and independent ØnskeBørn retailers are considered competitors, and any coordination of prices between them would constitute a cartel.

ØnskeBørn objected to the use of the evidence gathered during the dawn raid with respect to horizontal price coordination, claiming it was out of scope, i.e., that it fell outside the subject matter and purpose of the DCCA's decision. The DCCA dismissed this objection, and ØnskeBørn subsequently brought the matter before the Danish Maritime and Commercial High Court. 

On 29 March 2023, the Competition Council found that ØnskeBørn had infringed Section 6 of the DCA/Article 101 of the TFEU by coordinating prices.

In September 2023, the Danish Maritime and Commercial High Court found that, even though the presumption of anti-competitive activities contrary to Section 6 of the DCA/Article 101 of the TFEU arose from indications of retail price maintenance, the information gathered during the dawn raid was not excluded from being used as evidence of other infringements of Section 6 of the DCA/Article 101 of the TFEU. The court emphasised that dawn raids are conducted at the early stages of a case to collect information, meaning that the grounds for the initial presumption cannot be determined with certainty and, thus, cannot have a binding effect in all aspects.

ØnskeBørn appealed the ruling, and the case was brought before the Supreme Court, as it raised a question of principal.

The Supreme Court's judgement

The Supreme Court held that, in accordance with the general principles of public administration, the DCCA must pursue a legitimate purpose when conducting a dawn raid, and that the DCCA may process information only where it is necessary and proportional.

The out-of-scope principle applicable to dawn raids conducted by the European Commission follows from Article 28 of Council Regulation (EC) No. 1/2003 of 16 December 2002, under which information collected during dawn raids may only be used for the purpose for which it was acquired. No similar provision is found in the ECN+ Directive as implemented in the DCA. The Supreme Court found that there was no basis in the rules or the case law from the European Court of Justice (the "CJEU") for assuming that Article 28 extends to dawn raids conducted by national competition authorities. Accordingly, the Supreme Court held that neither Article 28 nor an out-of-scope principle applies to the DCCA's dawn raids, beyond the general requirements of objectivity and proportionality.

As to the circumstances of the case, the Supreme Court held that the court order allowed the DCCA to collect information on any infringement of Section 6 of the DCA/Article 101 of the TFEU involving ØnskeBørn.

The Supreme Court concluded that the DCCA had neither disregarded procedural safeguards nor processed information irrelevant or  unnecessary to the performance of its tasks under the DCA. It further found that the DCCA had not acted in violation of the European Convention on Human Rights (the "ECHR") or the EU Charter of Fundamental Rights (the "Charter").

Plesner's comments

The Supreme Court's judgment sets an important precedent. Firstly, there are relatively few court decisions addressing the scope of the DCCA's investigative powers. Secondly, the judgment establishes that the out-of-scope principle does not apply to dawn raids conducted by the DCCA. This stands in contrast to the case law of the CJEU, which has consistently held that the out-of-scope principle governs the European Commission's dawn raids and that incidental evidence obtained during such inspections may only serve as the basis for the decision to launch a new dawn raid.

The Supreme Court's judgment provides long-awaited clarification on the application of the out-of-scope principle in relation to the DCCA's dawn raids.

The preparatory works contain indications that dawn raids should be confined to the subject matter and purpose of the underlying decision, and, to some extent, the DCCA has applied an out-of-scope principle so far. The DCCA's guidelines on dawn raids issued in 2022 confirmed that the principle of out-of-scope was applied during its dawn raids and subsequent searches. However, this reference was removed in the updated guidelines from August 2025.

The Supreme Court's judgment is consistent with recent case law from the European Court of Human Rights (the "ECtHR"), which has accepted dawn raids based on broadly formulated search warrants limiting the scope to infringements corresponding to Section 6 of the DCA/Article 101 of the TFEU. Such warrants have been found compatible with Article 8 of the ECHR, provided that adequate procedural safeguards are in place and effectively applied. 

Although the Supreme Court's judgment provides clarification, it remains unsettled what limits, if any, the references to subject matter and purpose in the preparatory works, as well as the requirements of relevance, objectivity, and proportionality, impose on the DCCA's conduct of dawn raids. 

Read the Supreme Court's judgement of 13 June 2025 (in Danish)