Back in 2007, the French Department of Competition, Consumer Protection and Fraud Control (“DGCCRF”) conducted an inspection, authorised by a judicial order, at the premises of two related French construction and engineering companies, Vinci Construction and GTM Génie Civil et Services, for possible competition law infringements.

Such inspections may 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.

First of all, the inspection must be carried out in the presence of the occupant of the premises or its 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.

In this case, although no competition law violations had been found as a result of the search and seizure operations, Vinci and GTM brought proceedings in France to challenge the validity of the search and seizure operations, requesting their annulment on the grounds that the seizures were global and disproportionate in their scope, and included employee emails which were not connected to the investigation or were protected by legal privilege. They also complained that no detailed inventory of the items seized had been drawn up.

The companies first petitioned the Liberties and Detention Judge and then the French Supreme Court. In accordance with the applicable French legislation at the time, these were the only two appellate bodies available, with the Liberties and Detention Judge acting both as the judge authorising search and seizure operations as well as the appeal judge for these same operations. Both appeals were turned down.

(Note that, since November 2008, France has amended Article L.450-4 of the French Commercial Code: the Liberties and Detention Judge’s decisions may now be appealed before a Court of Appeal, prior to being challenged before the French Supreme Court.)

The companies thereafter brought proceedings against the Republic of France before the European Court of Human Rights (“ECHR”). Relying on Article 6 (right to a fair trial), and Article 8 (right to respect for private and family life, home and correspondence) of the ECHR Convention, the companies argued that they:

  • were not able to lodge a full appeal against the decision authorising the searches and seizures;
  • could only complain about those operations to the same judge who had authorised them;
  • suffered a disproportionate interference with their defence and privacy rights.

The ECHR unanimously held that France had violated Articles 6 and 8 of the ECHR Convention.

As regards Article 6 of the ECHR Convention, the Court stated that it had already held in a number of other cases that the procedure provided for did not allow for effective judicial review to challenge the lawfulness and merits of a decision by the Liberties and Detention Judge. In this regard, the ECRH requires an appeal both as to the law and the facts (ECHR, Ravon v. France, 21 February 2008). Although France has in the meantime become compliant with this ECHR requirement through the above mentioned 2008 procedural reform, it could nonetheless not avoid the censure of the ECHR, since the facts of this case preceded the reform.

As regards Article 8 of the ECHR Convention, the ECHR noted that the interference was carried out in accordance with the French Commercial Code and the French Criminal Procedure Code. The ECHR then proceeded to examine whether such interference had been proportionate and could be regarded as necessary for achieving legitimate aims within the meaning of Article 8. The ECHR noted that the inspections had been aimed at seeking evidence of possible anti-competitive practices and did not therefore seem, in themselves, disproportionate, especially because a number of procedural safeguards were prescribed as a matter of French law.

However, the ECHR noted that the seizures involved a large volume of documents, some of which contained correspondence exchanged with lawyers, which were subject to legal privilege or at least increased protection. The Court also noted that the companies had been unable to discuss the appropriateness of the documents being seized, or inspect their content, while the operations were being conducted.

Furthermore, in this instance, the ECHR found that the Liberties and Detention Judge had merely examined the lawfulness of the formal context in which the seizures were conducted, without carrying out the necessary detailed examination and review of proportionality.

The ECHR therefore ruled that the safeguards provided by French law had not been applied in an effective manner, and ordered the French Republic to pay costs of €15,000 to each complaining party. The companies also claimed damages for moral prejudice. However, the ECHR rejected these claims, holding that the finding of a violation constituted in itself just satisfaction considering the non-pecuniary damage sustained.

ECHR, ‘Vinci Construction’ and ‘GTM Génie Civil et services’ v. France, 2 April 2015 (applications no. 63629/10 and 60567/10)