On 31 August 2012, the Paris Court of Appeal handed down two orders confirming the legality of a search warrant and antitrust inspections carried out in 2009 by the French competition authority at the premises of Amaury, a publisher of daily newspapers (including the sports daily L’Equipe). Investigations were triggered further to a complaint lodged by fledgling publisher Le 10 Sport, claiming that Amaury had abused its dominant position on the sports daily market by launching Aujourd’hui Sport, another sports daily, in order to wipe Le 10 Sport off the market. It was also claimed that Amaury had offered significant discounts to advertisers so that it would make access to the market more difficult for Le 10 Sport.
Back in 2010, the Paris Court of Appeal had ruled that the search warrant and the inspections were flawed because of the application of the principle of freedom of the press and that protection of sources had been violated. However, in January 2012 the French Supreme Court quashed this judgment and opined that all businesses, including newspaper publishers, could be subjected to inspections for competition law infringements and no higher standard of proof applied to media companies.
In its latest judgment, the Paris Court of Appeal, asked again to rule on this matter, followed the judgment of the Supreme Court and declared that the search warrant and inspections were legal.
As regards the conditions of the inspections and the seizure of electronic mailboxes, the Paris Court of Appeal referred to its previous case-law and recalled that the French competition watchdog is entitled to seize entire electronic mailboxes during dawn raids without filtering their content for confidential or privileged information (see VBB on Competition, Volume 2011, No. 10, available at www.vbb.com). At the same time, it is not disputed that privileged information that results from correspondence between lawyer and client remains protected by the lawyer-client privilege and thus cannot be used by the competition authority.
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