European Union: Dawn Raids By French Competition Watchdog Trampled On Fundamental Rights

Dawn raids by French competition watchdog trampled on fundamental rights

The European Court of Human Rights (ECtHR) recently ruled that dawn raids carried out at the premises of two French construction companies by the DGCCRF (French Department for Competition, Consumer Protection and Fraud) violated both the rights of defense and the right to privacy, due to inadequate judicial review of both the decision authorizing the raids and the scope of documents seized. The ECtHR held that if, during a dawn raid, companies are unable to halt the seizure of out-of-scope or privileged documents, then they should at least have an effective judicial remedy to seek the removal of such documents from the file.


In 2007, the DGCCRF (an investigative body of the French Ministry for the Economy) obtained a search warrant from the JLD (Juge des Libertés et de la Détention or Liberties and Detention Judge) of the Paris Tribunal de Grand Instance to carry out inspections at the premises of two construction companies suspected of bid-rigging public works contracts. The DGCCRF seized a large number of documents and electronic files, as well as the entire contents of the electronic mailboxes of several employees.

The companies unsuccessfully appealed the inspections and seizures before the JLD and subsequently (restricted to points of law only) before the French Supreme Court (Cour de Cassation).

Complaint before the ECtHR

The companies then sought relief from the ECtHR, filing a complaint in October 2010 against the inspections and seizures. The objections were two-fold:

  1. Lack of effective remedy

    The companies complained that their right to an effective remedy (Article 13 ECHR) had been violated because (i) the judge who ruled on the lawfulness of the inspections and seizures was the same judge who had authorized the inspections (i.e., the JLD), and therefore could not sufficiently guarantee an impartial review, and (ii) the appeal before the French Supreme Court against such ruling was limited to points of law.

    Lack of impartiality. The ECtHR dismissed the first allegation, noting that the companies had not raised such argument before the French Supreme Court and therefore had not exhausted all domestic remedies.
    Inadequate legal review. Regarding the second allegation, the ECtHR affirmed its earlier decision-making recognizing the failure of the French Commercial Code's (then-applicable) procedural provisions to satisfy the right to a fair trial (Article 6 ECHR). Such provisions have since been modified to allow parties to challenge the JLD's decision, both on the law and the merits, before the President of the Court of Appeal.
  2. Violation of rights of defense and right to privacy

    The companies also complained that the "indiscriminate" seizure of documents and electronic data had violated their rights of defense (Article 6 ECHR) and their right to privacy (Article 8 ECHR), particularly with respect to correspondence covered by lawyer-client confidentiality. The ECtHR then assessed this complaint solely on the basis of the right to protection of one's private and family life, home and correspondence (Article 8 ECHR). Pursuant to its previous case law, it held that on-the-spot inspections at company premises constitute an "interference" with this right. Such interference is only allowed if, in pursuit of a public interest objective, it is "in accordance with the law" (i.e., with a proper legal basis) and is "necessary in a democratic society" (i.e., proportionate) (Article 8.2 ECHR).

    Interference had a proper legal basis.... The ECtHR found that the inspections and seizures had a proper legal basis, as these were governed by specific statutory provisions and pursued a legitimate aim. ...

    But was not proportionate. As to the proportionality issue, the ECtHR found that the inspections and seizures had not been "widespread and indiscriminate." This is because the authorities carefully confined their searches to the object and purpose of the investigation, as described in the search warrant, and prepared a sufficiently detailed inventory of the seized documents and electronic files.

Nevertheless, the ECtHR found that the applicants had not been given an opportunity to review the documents during the inspections, and therefore had been unable to object to the seizure of out-of-scope or privileged documents. The applicants therefore should have had the right to seek review of the seizure's lawfulness after the inspections. However, the JLD only examined the lawfulness of the formal framework in which the seizures had been conducted, without carrying out a specific review of their proportionality. The ECtHR held that, when a judge is called upon to assess the seizure of specifically identified documents that are unrelated to the purpose of the inspection or legally privileged, he must rule on the fate of these documents. Such ruling shall be based on a concrete proportionality assessment, and a judge should order the restitution or destruction of documents where appropriate.

The ECtHR therefore concluded that the seizures had been disproportionate, violating Article 8 ECHR.

In summary, the ruling confirms that meaningful and effective judicial review should be available to companies subject to dawn raid searches and seizures. It clarifies that companies should be able to challenge the seizure of individual documents deemed as out-of-scope or legally privileged, and that the judge ruling on such claims should have the power to order the removal of such documents from the file, thus preventing their use as evidence. The judgment also confirms that the decisions of the judge overseeing the inspections and seizures should be subject to an appeal on issues of law and fact.

National courts scrutinizing dawn raids

Ensuring procedural safeguards. Several recent national cases also illustrate that dawn raids are increasingly attracting judicial scrutiny regarding procedural rights. For example:

  • In Belgium in February 2015, the Brussels Court of Appeal ordered that all documents seized during a dawn raid at the premises of certain tour operators be expunged from the investigation file, since the then-applicable legislation did not provide for effective judicial review of the inspections and seizures. 
  • In France in June 2014, the French Cour de Cassation annulled a dawn raid at the premises of a French bank, finding a violation of the bank's right to a fair trial due to denial of access to legal counsel during the dawn raid (Cass. Crim., n°13-81.471). 

Preventing "fishing expeditions." Other national cases spotlight the significant challenges faced by competition authorities, whose investigations often entail vast quantities of documents and electronic files and e-mails. Therefore, the "seize first, sift later" approach is often relied upon. Without adequate safeguards, however, such an approach easily can become an unlawful "fishing expedition":

  • In Spain, in April 2015, the Audiencia Nacional (National Court) annulled fines of €61 million imposed in 2011 by the Spanish competition authority CNC (now CNMC) on five major electricity companies and their industry association (UNESA). The Court ruled that the dawn raids at UNESA were null and void, as the inspection order failed to adequately define the investigation's scope. Since CNC's entire case had been built on evidence seized during this dawn raid, the Court said it had no choice but to annul the findings against the companies, as well as the fines. 
  • In France, in April 2013, the French Cour de cassation held that when investigators seize large amounts of documents (in particular, electronic mailboxes), a breach of legal professional privilege occurs as soon as a protected document is taken, irrespective of the investigators' intention not to rely on the document and to return it at a later stage of the investigation (Cass. Crim. n° 12-80331). 

These national decisions follow in the wake of the EU General Court's judgments of November 2012 (Case T-135/09 and T-140/09), where the Court partially annulled decisions ordering dawn raids conducted by the European Commission at the premises of two cable manufacturers, in France and in Italy, as these decisions defined an overly broad scope of investigation. These were hailed as landmark judgments reining in the inspection powers of competition authorities, although the subsequent rejection of Nexans' appeal by the Court of Justice (Case C-37/13) seemed to mark a return to a more deferential review (see Jones Day Antitrust Alert of 14 September 2014).

Another landmark EU judgment is anticipated in the Deutsche Bahn case (Case C-583/13 P). In this matter, Advocate General Wahl has advised the Court of Justice to rule that the European Commission may seize documents revealing anticompetitive conduct, even if these were outside of the scope of the decision ordering the inspection, but only where such discovery is "truly fortuitous." In his view, this means that the Commission cannot seize documents relating to a separate suspected infringement (i.e., not covered in the concerned inspection decision) where Commission staff were told, prior to the inspection, to pay specific attention to information relating to such potential separate infringement (i.e., no fortuitous discovery).


All of these cases remind that competition authorities should carefully define the scope of the inspection and apply proper procedures for dealing with potential out-of-scope or privileged documents. Some European countries may also face amending their legislation to ensure proper judicial review of searches and seizures by competition or similar authorities (e.g., tax authorities). Finally, for companies, these cases illustrate the importance of dawn raid preparedness and that a fundamental rights-based defense against inappropriate inspections can be effective. While compensation awards before the ECtHR are generally modest (in the present case, €15,000), this is never the primary focus of an ECtHR claim or judgment. At stake is an affirmation of fundamental rights, towards rectifying the law applied by public authorities in relation to private parties.

In the French construction case, the European Court of Human Rights' judgment of April 2, 2015, can be found on its website

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.