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 ("ECHR").
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 not sufficient.
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 investigation.
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