On 2 April, the European Court of Human Rights
(ECtHR) ruled that dawn raids carried out by the
French competition authority breached the inspected companies'
rights to a fair trial and respect for private and family life
under the European Convention on Human Rights (the
Convention).
The case concerned dawn raids carried out in 2007 by the French
competition authority (DGCCRF) on Vinci
Construction France (Vinci) and GTM Genie Civil et
Services (GTM). During the inspections, the DGCCRF
copied email accounts and other electronic data in their entirety
without ensuring that certain documents (e.g. documents covered by
legal privilege) were not included. The French competition
authority employs the same approach today; the decision which
documents to include in the case file is taken only after the
inspection.
Vinci and GTM argued that this procedure - referred to in French as
"copie massive" - was contrary to the Convention.
First, the ECtHR found an infringement of the right to a fair
hearing under Article 6(1) of the Convention. The companies had had
no effective right of appeal against the decision to carry out the
inspection or the decision on which documents to include in the
case file. In a number of previous judgments the ECtHR had come to
the same conclusion as regards the French procedure in place at
that time; that procedure was however modified in 2009 to take into
account the ECtHR's position.
Perhaps more interesting is the analysis of the right to respect
for private and family life under Article 8 of the Convention,
which the ECtHR has interpreted to cover the companies' right to
protection of their data, correspondence etc.
The ECtHR did not condemn the "copie massive" as such, on
the basis that the DGCCRF had attempted to restrict searches to
documents held by relevant individuals and that it had provided an
inventory of the files seized.
Nonetheless, the ECtHR held that the Convention requires that
companies subject to an inspection should have available to them
effective judicial review in respect of the appropriateness of
documents seized and, where appropriate, an order for the return or
deletion of documents deemed irrelevant to the investigation or
covered by legal privilege.
Although the judgment concerns inspections under French law, its
impact on inspections by other authorities merits close analysis.
In particular, companies should now have at their disposal an
effective mechanism for appealing against a competition authority's
decision to (i) carry out an inspection (challenging e.g. the
evidence justifying the inspection or its scope) and (ii) seize or
include in its case file certain documents (on the basis that a
document is covered by legal privilege or outside the scope of the
investigation). It is however questionable whether the solution
envisaged by the ECtHR is optimal, since it implies a
multiplication of national appeals on procedural grounds. Arguably,
adopting procedures allowing companies to examine the content of
documents seized and discuss the appropriateness of their seizure
at the time of the raid may be more effective.
Please click on the links below for the other articles in
the April 2015 competition newsletter:
