European Court: searches and seizures by competition authority must have proportional judicial control

The European Court of Human Rights, in case Vinci Construction and GTM Génie Civil et Services v. France, registered under applications no. 63629/10 and 60567/10, by judgment of 2 April 2015¹, condemned France for breach of Articles 6(1) (right to a fair trial)² and 8 (right to respect for private and family life, home, and correspondence)³ of the European Convention on Human Rights (ECHR).

The applicants before the Court, Vinci Construction and GTM Génie Civil et Services, are companies based in France.

This case concerned inspections and seizures carried out at the referred companies’ premises on 23 October 2007, in the context of administrative antitrust proceedings which were opened by the French Department for Competition, Consumer Affairs, and Fraud Prevention (DGCCRF)⁴ and concerned alleged anti-competitive conduct adopted by the companies. Such inspections and seizures were authorised by the liberties and detention judge of the Paris tribunal de grande instance (LDJ) on 5 October 2007 and resulted in the seizure of several documents and computer files, as well as of the entire contents of e-mail accounts of certain employees of the applicant companies.

On appeals before the LDJ, the companies in question argued that the seizures conducted by the DGCCRF had been widespread and indiscriminate and included many documents unrelated to the investigation or protected by legal professional privilege. The applicants had also argued that they were not able to inspect the content of the seized documents prior to their seizure and therefore were unable to properly exercise their right of defence. The LDJ dismissed all the claims put forward by the applicant companies. Further appeals before the Cour de cassation were also dismissed by two judgments of 8 April 2010.

In this context, the applicant companies lodged a complaint before the European Court of Human Rights relying, inter alia, on Articles 6(1) and 8 ECHR, claiming that their right to an effective remedy was violated considering that (i) they were not able to lodge a full appeal against the LDJ decision authorising the inspections and seizures, and (ii) these can only be challenged before the judge that authorised them who, in the applicant companies’ opinion, lacked the necessary impartiality. Furthermore, they also qualified the seizures at issue as a disproportionate interference with their defence rights and with the right to respect for home, private life and correspondence, considering widespread and indiscriminate nature of such seizures, which included, in particular, documents protected by legal professional privilege.

With regard to Article 6(1) ECHR, the Court in the April 2015 judgment considered that the French law at the time did not provide the possibility of effective judicial review of a decision by the LDJ authorising inspections and seizures, and therefore upheld the applicants’ complaint in this matter.

In respect of Article 8 ECHR, although the Strasbourg Court considered that the search and seizure in question was in line with the requirements provided therein – inter alia, an interference in accordance with the applicable national law, based on legitimate aims of protecting the economic well-being of the country and preventing disorder of crime – it also noted that the seized material included several documents non-related to the investigation and other protected by legal professional privilege and the fact that the applicant companies had not been able to inspect the content of the documents being seized or to discuss the pertinence of their seizure during the inspection conducted by the DGCCRF.

In this regard, the European Court of Human Rights highlighted the necessity to provide the companies in question with the possibility of effective judicial review of the lawfulness of such seizure and found that in the appeal lodged by the companies the LDJ had merely examined the formal regularity of the seizures, without carrying a detailed review of the actual circumstances in which they were performed.

In the view of the Court, the LDJ was required to rule on what would happen to the documents unrelated to the investigation and to those covered by legal professional privilege after conducting a detailed examination and a specific review of proportionality, and subsequently to order their restitution where applicable. Therefore, it found that the inspections and seizures conducted by the DGCCRF at the applicant companies’ premises were disproportionate in breach of Article 8 ECHR.

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