The French competition authorities have revised their approach to the seizure of digital material during dawn raids.
In digital searches undertaken during onsite inspections, the French Competition authority (FCA) and the French Directorate General in charge of Competition (DGCCRF) customarily seized the entire contents of an individual email account, considering that it was a single indivisible file. France’s highest court, the Cour de cassation, also affirmed the indivisibility of email accounts and hard discs in a judgment of 17 June 2009 (Cass. Crim n°07-88354), and confirmed the validity of the seizure of entire email accounts in particular.
Article L.450-4 of the French Commercial Code sets out the judicial framework for dawn raids, which consists successively in a judicial authorization followed by an inspection and seizure of evidence, but does not precisely define the scope of the seizure.
It is in this context that the Cour de Cassation stated that “in regard to this article of the Commercial Code, any documents that touch on the prohibited actions that are the focus of the judicial authorization can be seized.” (Cass Crim. 14 November 2007 n° 05-85739).
Nevertheless, such “global” seizures raise a delicate question: the reconciliation of the efficiency of the investigation with respect for the rights of defence and legal privilege, in which the confidential relations between lawyer and client play a key role.
In a series of judgments delivered on 24 April 2013, the Criminal Chamber of the Court of Cassation then slightly changed its position. The Court partially reversed the Order of the Court of Appeal which had rejected the request to annul the seizure by the FCA of email accounts which included legally privileged documents. In the past, when a seizure included digital material covered by lawyer-client legal professional privilege, the Court of Cassation repeatedly stated that the seizure was not nullified by this, since:
- the inspectors could not use these legally privileged documents in the proceedings, and
- the company concerned could have these documents returned to it.
In the 2013 ruling, the Court said for the first time that the confidentiality of correspondence is violated as soon as the document is seized by the investigators, and not only when or if the document is used by them.
As a result, the seizure of correspondence between lawyers and client was annulled, but only in respect of those documents. The Court still refuses to annul the seizure in its entirety.
This ruling on privilege was a welcome one. It finally drew the proper consequences from the judgment of the Court of First Instance of the European Union (now General Court) in the Azko Nobel Chemicals case (Cases T-125/03 and T-253/03, 17 September 2007) which, since that date, has meant that the simple apprehension of a document covered by legal privilege is an infringement of the confidentiality of correspondence of this kind. "[…] [T]he Court considers that the fact that the Commission reads the content of a confidential document is in itself a breach of this principle. Contrary to what the Commission seems to submit, the protection of LPP therefore goes beyond the requirement that information provided by an undertaking to its lawyer or the content of the advice given by that lawyer cannot be used against it in a decision which penalises a breach of the competition rules."
It took time, but both the FCA and the DGCCRF have now announced an amendment to their approach to digital searches in order better to protect legally privileged documents. They will authorise companies to request that the digital contents seized be placed under a “temporary closed seal” to enable the company to identify and request the FCA to extract the correspondence between lawyers and client before the inspectors actually begin to acquaint themselves with the digital contents. The DGCCRF is expected to publish an article soon which should clarify whether this request for temporary sealing should be made according to a specific format or on an informal basis.
In addition, since the new leniency programme was published on 03 April, 2015, the FCA has modified its practice as regards the announcement of dawn raids. Until now, the Commission has only ever confirmed that it has undertaken inspections in a given sector. In July 2014, the FCA confirmed for the first time that it had carried out inspections in the marketing of optical glasses.
The introduction of the principle of a press release being issued by the FCA, just after dawn raids have taken place, allows those undertakings not subject to the dawn raid an equal opportunity to apply for leniency. According to Point 14 of the new leniency programme, the press release will not indicate the name of the undertakings visited and will not violate the presumption of innocence.
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