Vinci Construction and GTM Génie Civil et Services (the applicants), have won their case against France before the European Court of Human Rights (ECHR), successfully challenging the circumstances under which seizures were conducted in their premises in 2007 by the Directorate-General for Competition, Consumer Affairs and Prevention of Fraud for alleged anticompetitive practices.
The key questions at issue: the legality of massive, undifferentiated seizures by reference to the right to a fair trial, and the right to respect of private and family life. The ECHR ruled that the seizures conducted by the administration were not proportionate to the objective pursued and, consequently, violated article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
During the raids, the ECHR noted, the applicants had not been given the chance to know the contents of the documents seized (particularly some of the employees’ entire mailboxes), nor were they able to challenge the appropriateness of the seizures. As a result, the applicants were unable to object to the seizure of documents which did not fall within the scope of the investigation, including those that may have been covered by legal privilege. The ECHR held that the claimants should have at least been able to effectively challenge the lawfulness of these seizures after the inspections.
The applicants had identified and informed the French judge of the presence within the seized materials of correspondence covered by legal privilege. The ECHR held that by merely and briefly examining the formal context in which the illegal seizures were conducted, while at the same time acknowledging the existence of documents covered by legal privilege within the materials seized, the judge had not carried out the thorough, concrete examination which was expected of him.
Accordingly, the ECHR held that the right to the respect of private life guaranteed by article 8 of the Convention imposes that the judge "rule[s] on the fate of documents collected although they were unrelated to the investigation or were covered by legal privilege following a concrete proportionality test and if appropriate, to order their restitution."
In the absence of such a "concrete proportionality test", the seizures were deemed disproportionate to the objective pursued and, consequently, violated article 8 of the Convention.
This decision limits the government’s ability to conduct digital seizures without allowing the investigated companies an effective way to challenge them, before or after the seizures, so that they have the opportunity to exclude any documents falling outside the scope of the investigation or covered by legal privilege from the seized materials.
It should be underlined that the methods of seizures in France have recently evolved with the introduction of temporary digital seals to allow investigated companies to request the exclusion of documents covered by legal privilege before the final digital seals are affixed.
This outcome increases the protection of the legitimate rights of companies. However, there is still room for improvement, since any seizure shall not only be subject to a concrete proportionality test to protect legal privilege, but also a test for the documents falling outside the scope of investigation.
Ref : ECHR, 5th Sect., 2 April 2015, n°63629/10, n°60567/10, Case Vinci Construction and GTM Génie civil and Services v/. France