DATA PROTECTION | Advocate General on protection of fundamental rights in seizure of business e-mails

On 23 October 2025, the European Court of Justice (CJEU) published Advocate General’s opinion in joint cases C- 258/23 where the latter held that seizing business e-mails in the context of investigations without prior judicial authorization does not infringe the right to secrecy of communications under Article 7 of the EU Charter of Fundamental Rights.

In the case at stake, the Portuguese competition authority (Competition Authority), acting under the authorization of the public prosecutor’s office, seized corporate e-mails exchanged by companies’ employees as part of an investigation. The companies involved argued that the fundamental right to secrecy of correspondence of the parties involved had been infringed upon, as the seizure required prior judicial approval. Relevantly, under Article 6 of Directive (EU) 2019/1 national competition authorities should be empowered to access and copy business records “irrespective of the medium on which they are stored”, thus including records contained in e-mails. Moreover, under Portuguese law, inspections and seize activities by Competition Authority require prior judicial authorization only in case they involve access to private domains, such as private homes. Lastly, on 4 October 2024 the CJEU ruled that competition authorities accessing mobile phone data, in the context of a criminal investigation, must obtain prior judicial authorization, as this activity allows access to personal data stored therein.

The Advocate General observed that the considerations made for phone records cannot be transposed to the present cases. Indeed, private phones contain a large amount of personal data which provide detailed information about the private lives of the data subjects. Conversely, business e-mails  mainly contain information concerning businesses or legal persons.

The Advocate General also emphasized that any seizure activity should be subject to adequate and effective procedural safeguards and to a subsequent judicial review.

Newsletter n. 112 – November 2025