On 2 April 2015, the European Court of Human Rights ("ECtHR") ruled that the French state breached two companies' fundamental rights under the European Convention on Human Rights ("ECHR"). The ruling concerns the events in the aftermath of unannounced inspections that were conducted by the French competition authority in 2007. The Court held that these violated the companies' right to a fair trial (Art. 6 ECHR) as well as their right for respect for private and family life, home and correspondence (Art. 8 ECHR).

In 2007, the French competition authority conducted inspections at the premises of two construction companies (Vinci Construction and GTM Génie Civil and Services) and seized a large number of documents. These included entire email accounts of employees that also contained privileged correspondence and documents out of scope of the investigation. After unsuccessfully exhausting the national remedies, the companies lodged a complaint before the ECtHR. Among others, the companies claimed that their rights under Art. 6 ECHR had been infringed because they had been unable to lodge a full appeal (i.e. both on the facts and the law) against the decision authorizing the inspections. In addition, the companies argued that the French state had interfered disproportionally with their rights under Art. 8 ECHR through the massive and indiscriminate seizure of documents.

In line with its case law, the ECtHR first concluded that the French appeal procedure in place at the time of the inspections indeed violated Art. 6 ECHR. The Court also found that Art. 8 ECHR had been breached. At the outset, it determined that the inspections in themselves were not disproportionate to the goal pursued, namely the investigation of potential anticompetitive practices. The ECtHR then reviewed whether the existing safeguards in French law against disproportionate conduct had been applied in a concrete and effective manner. Since the companies had been unable to challenge the lawfulness of the seizure of privileged and out of scope documents during the inspections, the ECtHR noted that they should have had that opportunity afterwards. On appeal, however, the judge that reviewed the seizure had only looked at the lawfulness of the formal context in which the inspections had occurred. No concrete review of proportionality had taken place in relation to each of the privileged and out of scope documents that were specifically identified as such by the companies. The ECtHR considered this an infringement of Art. 8 ECHR and awarded damages of EUR15,000.

This ruling shows that legal safeguards regarding the seizure of privileged correspondence and out of scope documents during unannounced inspections must be applied in a concrete and effective manner by Member States. If only on appeal a company can argue, for the first time, that specific documents should not have been seized, the judge that reviews the lawfulness of the inspections must conduct a concrete examination of each of those documents and, if necessary, order their return.

The Court's ruling comes several months after a judgment in which it found that unannounced inspections by the Czech Antitrust Office had also violated Art. 8 ECHR (see: Newsletter December 2014). After having stopped conducting unannounced inspections for a few months, the Czech Antitrust Office resumed its activities earlier this year.