On 2 April 2015, the European Court of Human Rights
("ECtHR") ruled that two dawn raids carried out by the
French Competition Authority ("FCA") in 2007 infringed
Articles 6(1) and 8 of the European Convention on Human Rights
The case related to dawn raids performed by the FCA back in 2007
on the premises of undertakings active in the construction
industry, including the claimants Vinci Construction and GTM
Génie Civil et Services.
The ECtHR confirmed a previous ruling which found that the
applicable French procedure at that time, whereby undertakings
could only introduce an appeal against the judicial decision
authorising the dawn raids before the French Supreme Court
(Cour de cassation), was contrary to the right to a fair
trial pursuant to Article 6(1) ECHR.
The ECtHR also found that the right to private life protected by
Article 8 ECHR had been infringed by the FCA. The claimants had
argued that the FCA had seized documents in a massive and
undifferentiated manner and, as a result, judicial protection was
In its judgment, the ECtHR ruled that the seizure of documents
was not massive and undifferentiated, even though such seizure
concerned entire mailboxes. However, the Court also considered that
undertakings must be able to appeal the regularity of the seizure
before a judicial court.
In the present case, a French judge had ruled that the seizure
was in line with the formal requirements provided under French law.
However, such judicial control was found to be unsatisfactory by
the ECtHR since the judge did not perform a concrete examination of
the regularity of the seizure even though it had found that
privileged lawyer-client correspondence had been seized.
For the ECtHR, a judge facing reasoned claims that documents had
been seized although they were not related to the investigation, or
were subject to lawyer-client privilege, must perform an accurate
examination and a concrete test of proportionality and, when
appropriate, order their restitution.
The ECtHR thus concluded that the then-applicable French
procedure for appeal against dawn raids decisions was contrary to
Articles 6(1) and 8 ECHR. If the current French judicial control
regarding the seizure of documents subject to lawyer-client
privilege appears now to be in line with the ECtHR's findings,
this judgment could still require improvements regarding the
inspection of seized documents which are not related to the
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