Opinion of the Advocate General — ECLI:EU:C:2024:537
Date: 2024-06-20
Language of the case: Portuguese

Translation C-258/23 – 1 
Case C-258/23 
Request for a preliminary ruling 
Date lodged: 
24 April 2023 
Referring court: 
Tribunal da Concorrência, Regulação e Supervisão 
Date of the decision to refer: 
21 April 2023 
Applicant: 
IMI – Imagens Médicas Integradas, S.A. 
Defendant: 
Autoridade da Concorrência 
  
REQUEST FOR A PRELIMINARY RULING 
1. Referring court 
Tribunal da Concorrência, Regulação e Supervisão (Competition, 
Regulation and Supervision Court, Portugal) (First Chamber) 
2. Parties in the main proceedings 
A. Defendant: Autoridade da Concorrência (Competition Authority) 
B. Applicant: IMI – IMAGENS MÉDICAS INTEGRADAS, S.A. 
3. Subject matter of the main proceedings and relevant facts 
1. In the context of administrative infringement proceedings ― in 
relation to which the present proceedings are of an interlocutory nature 
―, the Autoridade da Concorrência (Competition Authority) is 
investigating a number of anticompetitive practices as prohibited by 
Article 9 of the Lei da Concorrência (Law on Competition) and 
Article 101 TFEU. 
EN 
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2. In particular, the Competition Authority is investigating whether there 
is an agreement or concerted practice aimed at eliminating competition 
between undertakings in the healthcare field which are active on the 
teleradiology market, and at increasing the price paid by the State for 
the provision of services in the aforementioned field, given that 
Portuguese hospitals belonging to the Serviço Nacional de Saúde 
(National Health Service) use external private teleradiology services, 
and periodically launch public invitations to tender in order to 
purchase such services. 
3. During its investigation, the Competition Authority considered it 
necessary to carry out measures involving the search for, and 
examination, collection and seizure of, evidence. 
4. To that end, it asked the competent judicial authority, in this case the 
Public Prosecutor’s Office, to authorise those measures. The Public 
Prosecutor’s Office, considering this to be necessary to the 
investigation under way, granted the Competition Authority’s request 
and issued the relevant orders, including for the seizure of: 
‘Copies or extracts of written records and other documentation, 
whether open and filed or open and in circulation among staff, in 
particular, e-mails and internal documents for the dissemination of 
information between various levels of hierarchy and for the 
preparation of commercial policy decisions by the undertakings, as 
well as minutes of executive or management meetings, whether or not 
held in a secure location or one not freely accessible by the public, 
including any computer storage media or computers, and [for] the 
examination and copying of the information stored on them, be they 
directly or indirectly related to practices restrictive of competition’. 
5. The authorisation granted by order of the judicial authority excluded 
the seizure of evidence on premises where healthcare services are 
provided or where documents covered by medical confidentiality are 
stored. 
6. Following a search of the electronic mailboxes of the employees of the 
undertaking concerned, the Competition Authority seized 1 405 
computer files considered relevant to the investigation. 
4. Relevant legal provisions 
Article 9 of the Lei da Concorrência (Law on Competition) 
Article 101 TFEU 
5. Reasoning in the request for a preliminary ruling 
IMI 
 
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In Portuguese law, Lei n.º 19/2012, de 8 de maio (novo regime jurídico da 
Concorrência) (Law No 19/2012 of 8 May 2012 (New legal framework governing 
competition); ‘the Law on Competition’) confers on the Competition Authority the 
power to seize documents, whatever the medium on which they are stored, on the 
prior authorisation of the judicial authority (Articles 18(1)(c) and 20(1), (6) and 
(8) of the Law on Competition). 
The Law on Competition reserved the intervention of the investigating judge to 
cases involving the seizure of documents in banks, house searches and searches in 
law firms and medical practices. In all other situations, such as that at issue here, 
that Law requires the intervention of the judicial authority, in this case the Public 
Prosecutor’s Office. 
This case is concerned with the imposition of administrative penalties, as distinct 
from the prosecution of any criminal offence. 
Nonetheless, the rules of the Law on Competition adhere to the same criterion that 
informs the rules of criminal law: where the means of obtaining evidence may 
jeopardise or infringe fundamental rights, the investigating judge must intervene; 
in all other cases, authorisation/validation of the means of obtaining evidence 
requires (only) the intervention of the Public Prosecutor’s Office, acting as 
judicial authority, which is responsible for leading the investigation. 
This therefore raises the question as to whether, in the context of an investigation 
into anticompetitive practices carried on by undertakings, the exercise of the 
evidence-gathering powers conferred on the Competition Authority infringes any 
fundamental right. 
The Tribunal da Concorrência, Regulação e Supervisão (Competition, Regulation 
and Supervision Court), supported by the most authoritative legal literature and by 
the […] higher court, has maintained that documentation seized by the 
Competition Authority in the aforementioned context does not constitute 
correspondence, [the inviolability of which] is a fundamental right enjoying a 
higher level of protection. 
The proposition that the mere fact of their having come from communications 
contained in the work e-mails of employees of the undertakings concerned 
supports the classification of the documents seized as correspondence for the 
purposes of their eligibility for the guaranteed greater protection which the 
fundamental rights of natural persons automatically enjoy, has therefore been 
rejected. 
The undertaking concerned rejects that approach and argues that the 
documentation seized from the e-mails of its employees constitutes 
correspondence, which cannot be seized in the context of administrative penalty 
proceedings, and cannot therefore be seized during the investigation of 
anticompetitive practices prohibited by Articles 101 TFEU and Article 102 
TFEU; it goes on to say that, at most, even if such documentation could be seized, 
REQUEST FOR A PRELIMINARY RULING OF 21. 4. 2023 – CASE C-258/23 
 
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the seizure would in any event have to be pre-authorised by an investigating 
judge, since such a measure is an interference with correspondence, [the 
inviolability of which] is a fundamental right requiring such authorisation. 
For all the foregoing reasons, and having regard to: 
1. The fact that EU law has primacy, irrespective of the rank and nature of the 
national provisions concerned, even if they are constitutional in nature; 1 2 
2. The fact that the provisions of EU law under examination here are intended 
to ensure the economic well-being of the country and to protect the proper 
functioning of the internal market as (i) a fundamental driver of the well-
being of citizens, (ii) a guarantor of effective competition between 
businesses, ensuring that businesses compete on a level playing field as 
between all Member States, and (iii) an incentive for businesses to maintain 
their efforts to offer consumers the best possible products at the best possible 
prices; 
3. The prohibition, to that end, of any misuse by one or more undertakings of a 
dominant position within the market that may affect trade between Member 
States, and the fact that such a practice may consist in imposing unfair 
purchase or selling prices or other unfair trading conditions; limiting 
production, markets or technical development; applying dissimilar trading 
conditions; or making the conclusion of contracts subject to acceptance of 
supplementary obligations which have no connection with the subject of 
such contracts (Article 102 TFEU, ex Article 82 TEC); 
4. The fact that social, economic, geopolitical and technological changes 
repeatedly pose new challenges for EU competition policy, in particular in 
 
1 See the case-law of the CJEU (judgment of 17 December 1970 in Case 11/70, EU:C:1970:114, 
paragraph 3), in which the Court emphasised that provisions of EU law take precedence over 
domestic provisions, including those of a constitutional nature: 
 ‘The law stemming from the Treaty, an independent source of law, cannot because of its very 
nature be overridden by rules of national law […]; […] the validity of a Community measure or 
its effect within a Member State cannot be affected by allegations that it runs counter to either 
fundamental rights as formulated by the constitution of that State or the principles of a national 
constitutional structure’. 
2 In legal literature, see to that effect: 
 Professor Ana Maria Guerra Martins, in Curso de Direito Constitucional da União Europeia, 
p. 34: 
 ‘EU law, both primary and secondary, takes precedence over all provisions of domestic law, 
including those of a constitutional nature, which will not apply’. 
 And Professor Fausto de Quadros, in Direito da União Europeia – Direito Constitucional e 
Administrativo da União Europeia, fourth reprint, 2012, Almedina, p. 403: 
 ‘Primacy does not exist unless it is supraconstitutional’. 
IMI 
 
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the context of an increasingly digitised economy which, as such, requires the 
existence of effective instruments to enable the objectives referred to in the 
paragraph preceding the last to be effectively protected; 
5. The fact that, according to Article 20 of Council Regulation No 1/2003, the 
Commission, in order to carry out the duties assigned to it by that regulation 
― on the implementation of the rules on competition laid down in 
Articles 81 and 82 of the Treaty ―, may conduct all necessary inspections 
of undertakings and associations of undertakings and examine the books and 
any other records related to the business, irrespective of the medium on 
which they are stored; 
6. The fact that, according to Article 21 of that regulation, the Commission 
may carry out inspections and seizures at other premises, such as the homes 
of directors, managers and other members of staff, provided that prior 
authorisation is obtained from the national judicial authority; 
7. The fact that Article 22 of Council Regulation No 1/2003 provides that the 
competition authority of a Member State may in its own territory carry out 
any inspection or other fact-finding measure under its national law; 
8. The fact that the Law on Competition, as approved by Law No 19/2012 of 
8 May 2012, provides in Article 20(1) that: 3 
 
3 The Portuguese legislature retained this provision unchanged when transposing Directive (EU) 
2019/1 of the European Parliament and of the Council of 11 December 2018, which 
contains the following recitals (30 [and] 32), concerning Article 6 of that directive: 
 - ‘The investigative powers of national administrative competition authorities should be 
adequate to meet the enforcement challenges of the digital environment, and should enable 
NCAs to obtain all information related to the undertaking or association of undertakings which 
is subject to the investigative measure in digital form, including data obtained forensically, 
irrespective of the medium on which the information is stored, such as on laptops, mobile 
phones, other mobile devices or cloud storage’. 
 - ‘[…] [T]he power of national administrative competition authorities to carry out inspections 
should enable them to access information that is accessible to the undertaking or association of 
undertakings or person subject to the inspection and which is related to the undertaking or the 
association of undertakings under investigation. This should necessarily include the power to 
search for documents, files or data on devices which are not precisely identified in advance. 
Without such power, it would be impossible to obtain the information necessary for the 
investigation where undertakings or associations of undertakings adopt an obstructive attitude 
or refuse to cooperate. The power to examine books or records should cover all forms of 
correspondence, including electronic messages, irrespective of whether they appear to be 
unread or have been deleted’. 
 Article 6 of that directive provides that: 
 ‘1 Member States shall ensure that national administrative competition authorities are able to 
conduct all necessary unannounced inspections of undertakings and associations of undertakings 
for the application of Articles 101 and 102 TFEU. 
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‘1- Seizures of documents, whatever their nature and whatever the medium 
on which they are stored, shall be authorised, mandated or validated by 
order of the judicial authority’; 
9. The fact that Article 20(6) of the Law on Competition provides that it is only 
seizures in banks or other credit institutions of documents covered by 
banking secrecy that require prior authorisation from the investigating 
judge, who must authorise such seizures where he or she has good reason to 
believe that those documents relate to an offence and are highly relevant to 
the task of establishing the truth or proving the case, even if they do not 
belong to the person concerned; 
10. The fact that paragraphs 3 and 5 of Article 2 of the Law on Competition 
respectively provide that: 
‘3- This Law shall be interpreted in a manner consistent with European 
Union law, in the light of the case-law of the Court of Justice of the 
European Union, including in matters of practices restrictive of competition 
which are not capable of affecting trade between Member States. 
5- In the context of Articles 101 and 102 of the Treaty on the Functioning of 
the European Union (TFEU), the implementation of this Law shall respect 
the general principles of European Union law and the Charter of 
Fundamental Rights of the European Union’; 
11. The fact that the documents under examination in this case relate to the 
conduct of the business activities of undertakings operating in the single 
      
 Member States shall ensure that the officials and other accompanying persons authorised or 
appointed by national competition authorities to conduct such inspections are, at a minimum, 
empowered: (a) to enter any premises, land, and means of transport of undertakings and 
associations of undertakings; (b) to examine the books and other records related to the business 
irrespective of the medium on which they are stored, and to have the right to access any 
information which is accessible to the entity subject to the inspection; (c) to take or obtain, in 
any form, copies of or extracts from such books or records and, where they consider it 
appropriate, to continue making such searches for information and the selection of copies or 
extracts at the premises of the national competition authorities or at any other designated 
premises; (d) to seal any business premises and books or records for the period and to the extent 
necessary for the inspection; (e) to ask any representative or member of staff of the undertaking 
or association of undertakings for explanations on facts or documents relating to the subject 
matter and purpose of the inspection and to record the answers. 
 2 Member States shall ensure that undertakings and associations of undertakings are required to 
submit to the inspections referred to in paragraph 1. Member States shall also ensure that, where 
an undertaking or association of undertakings opposes an inspection that has been ordered by a 
national administrative competition authority and/or that has been authorised by a national 
judicial authority, national competition authorities are able to obtain the necessary assistance of 
the police or of an equivalent enforcement authority so as to enable them to conduct the 
inspection. Such assistance may also be obtained as a precautionary measure. 
 3 This Article is without prejudice to requirements under national law for the prior authorisation 
of such inspections by a national judicial authority’. 
IMI 
 
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market and that, in today’s digital age, those documents are transmitted by e-
mail; 
12. The fact that e-mails, which act as a vehicle for the transmission of 
documents relating to the business activities of undertakings, are 
institutional in nature [@undertaking], inasmuch as they are the sole 
property of those undertakings, which unilaterally impose on their 
employees the terms on which that medium is to be used for the duration of 
their employment relationship with them; 
13. The fact [that], in accordance with the internal rules of undertakings, e-
mails, which act as a vehicle for the transmission of documents relating to 
the business activities of undertakings, are to be used only for work 
purposes, their use for personal purposes and purposes relating to the 
employee’s private life being prohibited; 
14. Recital 26 of Council Regulation No 1/2003, which classifies the 
aforementioned documents as business records; 
In order to dispose of the issues raised above, recourse must be had to the 
reference for a preliminary ruling mechanism, on the basis set out below. 
6. Questions referred for a preliminary ruling 
In accordance with Article 267 TFEU and Article 19(3) of the Treaty on 
European Union, the following questions are referred for a preliminary 
ruling: 
I. Do the business records at issue in this case, which are transmitted by 
e-mail, constitute ‘correspondence’ for the purposes of Article 7 of the 
Charter of Fundamental Rights of the European Union? 
II. Does Article 7 of the Charter of Fundamental Rights of the European 
Union preclude business records arising from e-mail communications 
between managers and employees of undertakings from being seized 
in the course of an investigation into agreements and practices 
prohibited under Article 101 TFEU (ex Article 81 TEC)? 
III. Does Article 7 of the Charter of Fundamental Rights of the European 
Union preclude such business records from being seized on the prior 
authorisation of a judicial authority, in this case the Public 
Prosecutor’s Office, which is responsible for representing the State, 
defending the interests determined by law, bringing criminal 
prosecutions on the basis of the principle of legality and defending 
democratic legality in accordance with the Constitution, and which 
operates independently of the other central, regional and local 
authorities? 
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21 April 2023 
Judge 
Mariana Gomes Machado 
[…]