France: French Court Upholds Competition Authority’s Global Seizure Of Electronic Mailboxes

On 11 April 2014, the Versailles Court of Appeal upheld the global seizure by the French Competition Authority (FCA) of electronic mailboxes during dawn raids.

In 2010, the FCA conducted an inspection at the premises of Medtronic France and Biotronik France, undertakings active in the IT medical field, for possible competition law infringements. During the course of the inspection, the inspectors globally seized electronic mailboxes in order to search for evidence of practices prohibited under Article 101 TFEU and its French equivalent.

Medtronic and Biotronik challenged the validity of the search and seizure operation. 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 legal professional privilege (LPP).

In 2011, the Paris Court of Appeal upheld the FCA's global seizure practice, finding that the fact that the FCA had returned the privileged documents to the companies was sufficient to preserve the protection of the rights of defence and the LPP. However, in April 2013, the French Supreme Court (Cour de Cassation) quashed the judgment, holding that the prerogatives of the FCA concerning the global seizure of electronic mailboxes during an inspection must be limited by the rights of defence. More specifically, the communications between lawyer and client are protected by LPP, and must thus remain confidential vis-à-vis the FCA. As a result, the French Supreme Court ruled that the rights of defence and the LPP were not sufficiently protected by a simple restitution of the documents, even though they had not been used for the purpose of the proceedings. Therefore, in the opinion of the French Supreme Court, the Court of Appeal should have examined whether the communications seized by the FCA were in fact susceptible of being protected by LPP (See VBB on Competition Law, Volume 2013, No. 6, available at www.vbb.com).

In the present judgment, not yet publicly available, the Versailles Court of Appeal found that three of the seized e-mails were protected by LLP. However, it ruled that only the seizure of the individual e-mails concerned was illegal, but not the global seizure of the electronic mailboxes. The Court made it clear that it limited its ruling on the legality of the seizure of individual electronic e-mails and that it was not competent to decide on whether the global seizure of entire electronic mailboxes should be annulled.

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