This case dates back to 13 December 2007, when the French Competition Authority (the "FCA") conducted an inspection, authorised by a judicial order, at the premises of Eurauchan for possible competition law infringements.
Such inspections can be conducted pursuant to a number of provisions laid out in the French Commercial Code (notably Articles L.450-1 and L.450-4) and the French Code of Criminal Procedure (notably Article 56), but the conditions surrounding the inspections are strict.
In fact, the inspection must be carried out in the presence of the occupant of the premises or his representative. Should that prove impossible, the law enforcement officer present during the operations must enlist the services of two witnesses who are not under his authority. Furthermore, any article or document seized must be immediately entered on an inventory and placed under official seals. The seizure of any electronic data is carried out by seizing either the physical medium holding this data or a copy of the data made in the presence of those persons present at the seizure. During the course
of the raid, the FCA inspectors searched and globally seized electronic data from the company’s computers. Eurauchan brought proceedings before the Paris Court of Appeal in order to challenge the validity of the search and seizure operations, requesting the annulment of the inspection on the grounds that the seizures were global and disproportionate in their scope.
On 28 June 2008, the Paris Court of Appeal rejected the claims made by Eurauchan. Eurauchan then decided to challenge the decision before the French Supreme Court.
On 14 November 2013, the French Supreme Court upheld the validity of the global seizure of electronic documents. Globally seizing documents during the course of an inspection does not affect the regularity of the procedure provided that (i) the seized documents are likely to contain material related to the purpose of the inspection and (ii) the searched company is provided a copy of the content of the seized files and is able to request their restitution.
The Court noted that Eurauchan had not made any specific claims before the Court of Appeal, nor had the company made any observations during the course of the FCA visit, as to why exactly some of the documents could not be seized.
The decision is in line with other French Supreme Court decisions admitting indiscriminate seizures of documents as long as their content (i) is global and indivisible and (ii) likely to contain, even partially, elements of interest to the inquiry (Crim. 29 juin 2011, n° 10-85.479, Crim. 14 déc. 2011, n° 11-81.329).
Note that, should some documents included in a global seizure be annulled, the validity of the rest of the seizure remains intact, as illustrated by a 2013 decision annulling the seizure of attorneyclient privileged documents for violation of the rights of the defence (Crim. 24 avr. 2013, n°12- 80.331) and by another very recent decision (Crim. 27 nov. 2013, n° 12-85.830). Crim. 14 nov. 2013, n°12-87.346 (Société Eurauchan).