With By its judgment of 30 January 2020, the Court of Appeal dismissed Eimskip's demands in a case the company has pursued in order for the courts to halt the Competition Authority's investigation into its alleged illegal collusion with Samskip. In the case before the Court of Appeal, Eimskip demanded that a seizure of its documents, imposed by the Competition Authority during searches of its premises, be lifted and that copies of the documents be destroyed.
The background to the case is that on 1st. July 2019, Eimskip demanded that the Reykjavík District Court rule that, on the one hand, the Competition Authority's investigation into the company's alleged illegal collusion with Samskip was unlawful and should be discontinued, and on the other hand, that a seizure order be lifted. which had been placed on the company's documents during searches on 10 December 2013 and 4 June 2014, and that copies of the documents be destroyed.
In support of its claims, Eimskip has argued, among other things, that the investigation of the case has taken an unreasonably long time, that the Competition Authority has misled the courts, that the seizure of documents during the searches was unlawful and that the authority's staff are biased, as they had participated in a police investigation into the role of Eimskip's management in the alleged collusion. Furthermore, the Competition Authority has violated Eimskip's human rights, including by continuing its investigation after having previously dropped it. The Competition Authority has argued in court that there is no merit to Eimskip's case.
On 10 October 2019, the Reykjavík District Court dismissed Eimskip's claim for a ruling that the Competition Authority's investigation was unlawful and should be discontinued. Eimskip appealed the ruling to the Court of Appeal. By a ruling on 24 October 2019, the Court of Appeal upheld the district court's decision. Eimskip's remaining claim was then for the lifting of a preservation order that had been placed on the company's documents and for the deletion of copies of such documents.
By a ruling on 18 December, the Reykjavík District Court dismissed Eimskip's remaining claim, namely to lift the attachment placed on the company's data and to delete copies of the data. Eimskip appealed the case to the Court of Appeal.
In its ruling yesterday, the Court of Appeal upheld the ruling of the Reykjavík District Court. The ruling states that the case file in no way suggests that the Competition Authority's investigation into the alleged collusion between Eimskip and Samskip was discontinued, and there is no evidence that the searches, seizures, and the Authority's examination of Eimskip's documents were unlawful. Furthermore, the Competition Act provides for the Competition Authority to participate in police investigative measures. The Court of Appeal held that Eimskip had not presented compelling evidence that there was a conflict of interest concerning the Authority's staff. The ruling states: „The administrative case against the defendants has taken a long time. However, from the available evidence it is clear that it is very extensive and that it is delaying its conclusion, but before the Landsréttur, [The Competition Authority] Reply submission II in the case of 13 December last, which comprises 1,168 pages. The defendants have put forward no arguments to the effect that copies of the seized evidence are not relevant to the investigation still under way and to the resolution of the administrative case.“ Eimskip can then challenge the Competition Authority's investigation at a later stage.
Regarding enquiries about the status of the investigation, the following should be noted:
The Competition Authority's investigation focuses on whether Eimskip and Samskip have engaged in illegal collusion in the markets for sea freight, freight forwarding and land transport, and breached Article 10 of the Competition Act and Article 53 of the EEA Agreement. This research was initiated following suggestions from both customers and competitors of Eimskip and Samskip.
The Competition Authority has been investigating the companies„ potential breaches continuously, and the investigation is well advanced. Among other things, the Competition Authority has given the companies the opportunity to comment on the Authority's preliminary assessment, as it safeguards the companies' right of reply in cases of this nature by issuing a so-called notice of objections. The Competition Authority's procedural rules state that in a statement of objections, "The main events of the case shall be described and the basis for it reported in outline, that certain circumstances or conduct may contravene the provisions of competition law..“
Eimskip and Samskip have been given an opportunity to exercise their right of reply in two stages. The first notice of objection was served on the companies on 6 June 2018, and they were invited to submit their comments and views. Neither of the companies exercised that right. The second notice of objection was, as previously stated, issued to the companies on 13 December 2019. The companies have now been given deadlines to submit their comments and views.
This case is being prioritised by the Competition Authority. The scale of the investigation, including the volume of underlying data, is unprecedented in the investigation of competition matters in this country.
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