Information Note on the Court’s case-law 184
April 2015
Vinci Construction and GTM Génie Civil et Services v. France - 60567/10 and 63629/10
Judgment 2.4.2015 [Section V]
Article 8
Article 8-1
Respect for correspondence
Respect for home
Search and seizure of electronic data including e-mails subject to lawyer-client privilege: violation
Facts – In October 2007 the liberties and detention judge at the tribunal de grande instance authorised the Department for Competition, Consumer Affairs and Fraud Prevention (DGCCRF) to carry out inspections and seizures on the premises of several companies, including those of the applicant companies, as part of an investigation into illegal concerted practices.
During the inspections numerous documents and computer files were seized, as well as the entire contents of the email accounts of certain individuals employed by the applicant companies.
The applicant companies each submitted an application to the liberties and detention judge at the tribunal de grande instance to have the inspections set aside and, failing that, seeking restitution of the unlawfully seized documents. Among other arguments, they alleged that the computer seizures had been widespread and indiscriminate, and that many of the seized documents had been unrelated to the investigation or were covered by lawyer-client professional privilege, and that in any event a sufficiently detailed inventory had not been drawn up. They also submitted that they had been unable to inspect the content of the documents prior to their seizure and had thus not been in a position to contest them.
The JLD dismissed all of the claims by the applicant companies, and the Court of Cassation dismissed their appeals on points of law.
Law – Article 8: The search and seizure of electronic data, consisting in particular in electronic messages which were protected by lawyer-client privilege, amounted to interference in the rights protected by Article 8 of the Convention. This interference with the applicant companies’ domicile and the secrecy of their correspondence had been “in accordance with the law” and was intended to find evidence and indications of the existence of unlawful agreements in the interests both of the “economic well-being of the country” and the “prevention of disorder or crime”.
The inspections had been aimed at seeking evidence of possible anti-competitive practices by the applicant companies and did not therefore appear as such to have been disproportionate for the purposes of Article 8. In addition, the domestic procedure had provided for a number of safeguards.
The investigators had endeavoured to restrict their searches and to seize only material that was related to the subject-matter of their investigation. In addition, a sufficiently detailed inventory, indicating the name of the files, their extensions, origins and digital fingerprints had been drawn up and handed over to the applicant companies, as well as a copy of the documents seized. The seizures could not therefore be described as “massive and indiscriminate”.
However, the seizures had concerned numerous electronic documents, including the entire professional email accounts of certain of the applicant companies’ employees. It was undisputed that these documents and email accounts contained a number of files and information covered by lawyer-client privilege. The DGCCRF had specifically indicated in its defence submissions to the liberties and detention judge that it had no objection to the restitution of material thus covered by professional privilege.
Further, while the operations in question were being conducted the applicant companies had been unable either to inspect the content of the documents being seized or to discuss the appropriateness of their seizure. Having been unable to prevent the seizure of documents unrelated to the investigation and especially those covered by lawyer-client privilege, the applicant companies should have been able to obtain, a posteriori, a tangible and effective review of their lawfulness. An appeal such as that provided for by Article L.450‑4 of the Code of Commerce ought to have enabled them to obtain, if appropriate, restitution of the documents concerned or an assurance, with regard to the computer files, that they had been deleted in their entirety.
In this regard, where a judge was called upon to examine reasoned allegations that specifically identified documents had been taken although they were unconnected to the investigation or were covered by lawyer-client privilege, he or she was required to rule on their fate after conducting a specific review of proportionality and to order, where appropriate, their restitution. However, although the applicant companies had exercised their statutory right to appeal to the liberties and detention judge and the judge was aware that the documents removed by the investigators contained correspondence from a lawyer, he had merely examined the formal regularity of the impugned seizures, without examining, as he should have done, the actual circumstances in which they were carried out.
In the light of the foregoing, the seizures carried out on the applicant companies’ premises had, in the circumstances of the case, been disproportionate to the aim pursued.
Conclusion: violation (unanimously).
The Court also concluded, unanimously, that there had been a violation of Article 6 § 1 of the Convention on account of the lack of effective judicial review of the decisions authorising the inspections and seizures under Article L.450‑4, paragraph 6, of the Code of Commerce.
Article 41: finding of a violation sufficient in itself in respect of any non-pecuniary damage; claim for pecuniary damage dismissed.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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