On 24 April 2013, the French Supreme Court ruled that the powers
of inspectors to globally seize electronic mailboxes are limited by
the rights of the defence and, more specifically, the legal
professional privilege ("LPP"). As a result, in 6
separate judgments, the French Supreme Court (partially) quashed 6
decisions rendered by the First President of the Paris Court of
Appeal, which covered apparently three different competition
investigations. One of these judgments, concerning an investigation
in the IT medical field, has recently been made available.
On 9 and 10 November 2010, the French Competition Authority
("FCA") conducted an inspection at the premises of
Medtronic France, an undertaking active in the IT medical field,
for possible competition law infringements. During the course of
the inspection, the inspectors searched and globally seized, among
others, electronic mailboxes of Medtronic employees.
Medtronic challenged the validity of the search and seizure
operations. It brought proceedings before the Paris Court of
Appeal, requesting the annulment of the inspection and the
restitution of all electronic mailboxes, on the grounds, among
others, that the FCA seized communications protected by the
On 15 November 2011, the Paris Court of Appeal rejected the
claims made by Medtronic. Its First President ruled that the fact
that communications between lawyers and clients were seized during
the course of the inspection, as part of the global and indivisible
seizure of electronic mailboxes, did not affect the regularity of
the procedure provided that (i) these documents were susceptible to
contain matters in relation to the subject-matter and the purpose
of the inspection and (ii) the searched company had the opportunity
to know the content of the seized files and was able to request
their restitution. The First President considered as appropriate
and reasonable the restitution of such communications, to which the
FCA did not oppose, as sufficient to preserve the rights of the
defence and LPP.
The French Supreme Court partially quashed the order of the
Paris Court of Appeal. It held that the prerogatives recognized to
the FCA concerning the global seizure of electronic mailboxes
during an inspection must be limited by the rights of the defence.
More specifically, communications between lawyer and client are
protected by LPP, and thus are confidential as regards the FCA. As
a result, the French Supreme Court ruled that the rights of the
defence and the LPP were not sufficiently protected by a simple
restitution of the documents, even though they had not been used
for the purposes of the proceedings. Therefore, in the opinion of
the French Supreme Court, the Paris Court of Appeal should have
examined whether these communications were in fact susceptible of
being protected by the LPP. Moreover, the French Supreme Court
ruled that the violation of the LPP occurs as soon as the
communications are seized by the inspectors.
The French Supreme Court judgments could potentially impact the
way the FCA will conduct its search and seize operations in the
future, so as to better protect LPP. However, the precise
implication and scope of these rulings still remain to be
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