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
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
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