European Union: European Court Of Human Rights Rules That Inspections By French Competition Authority Are Compatible With Article 8 ECHR

On 13 April 2017, the European Court of Human Rights ("ECtHR") dismissed an application made by Janssen-Cilag, the French subsidiary of US pharmaceutical company Johnson & Johnson, concerning inspections carried out by the French Competition Authority ("FCA") at the company's premises on 5 and 6 May 2009. In particular, the ECtHR held that the national competition authority's inspection powers did not breach the European Convention on Human Rights ("ECHR"), as the inspection was carried out in accordance with the law and pursued a legitimate aim (Janssen Cilag S.A.S v France (no. 33931/12)).

By order of 29 April 2009, a French judge of the Nanterre Tribunal authorised the FCA to conduct search and seizure operations at Janssen-Cilag's premises, pursuant to Article L.450-4 of the French Commercial Code. During the inspection, FCA officials seized a number of documents and computer files. Janssen-Cilag subsequently lodged an appeal before the Versailles Court of Appeal. The Court of Appeal partially set aside the order for the seizure of three files, on the grounds that it was unclear from the inventory and the written report of the inspection whether the documents contained in those files fell under the scope of the inspection authorisation issued by the Nanterre Tribunal judge. The Court of Appeal found the inspection to have been otherwise lawful. A subsequent appeal by Janssen-Cilag was dismissed by the French Supreme Court (Cour de Cassation).

In its application before the ECtHR, Janssen-Cilag first relied on Article 6(1) ECHR (right to a fair trial), read in conjunction with Article 8 ECHR (right to respect for the home and correspondence), and argued that the principle of client-attorney privilege was infringed in respect of searches carried out on the computer directories of the company's legal department. Janssen-Cilag also complained about the excessive quantity of documents seized, including the entire mailboxes of employees. Secondly, the company argued that the number of lawyers to assist the company during the inspection had been unlawfully restricted, in breach of Article 6(3) ECHR, resulting in only three lawyers having to supervise six FCA teams. Finally, Janssen-Cilag argued that its right to a fair trial and the right to an effective remedy (Article 13 ECHR) had been breached, as it did not obtain a proper review of the manner in which the inspection had been carried out.

The ECtHR decided to examine the applicant's first plea under Article 8 ECHR alone, rather than in conjunction with Article 6(1) ECHR. The ECtHR relied on its previous ruling in Vinci Construction et GTM Génie Civil et Services v. France (nos. 63629/10 and 60567/10, 2 April 2015), in which it held that while inspections carried out pursuant to Article L.450-4 of the French Commercial Code interfered with the rights set out in Article 8 ECHR, that interference was "in accordance with the law" and pursued a legitimate aim. The ECtHR applied the same reasoning in the present case, stating that the inspection carried out at Janssen-Cilag's premises had the aim of gathering evidence of an abuse of a dominant position and of anticompetitive practices, which the ECtHR did not consider to be disproportionate under Article 8 ECHR. The Court then noted that the three lawyers that were present during the inspection had been in a position to familiarise themselves with at least some of the documents seized and to discuss the seizure. The Court also recalled that each FCA team was accompanied by a company representative.

Concerning the judicial review of the inspection, the ECtHR considered that the French Court of Appeal conducted an effective review of Janssen-Cilag's arguments  and that therefore the rights sets out in Article 8 ECHR had been safeguarded. The ECtHR noted that the national judge had confirmed that Janssen-Cilag had the possibility to identify the documents it considered confidential and to request for those documents to be returned, in line with Article L.450-4 of the French Commercial Code, and had not claimed that any documents that it had specifically identified as confidential were wrongly seized. The ECtHR therefore concluded that the provisions of Article L.450-4 had been effectively applied, and dismissed the first plea. The Court dismissed the pleas in respect to Articles 6(1), 6(3) and 13 ECHR as manifestly ill-founded, due to the lack of any appearance of a violation of the rights and freedoms set out in those provisions.

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