French Court Upholds Competition Authority’s Global Seizure Of Electronic Mailboxes

Author:Van Bael Bellis
Profession:Van Bael & Bellis
 
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On 11 April 2014, the Versailles Court of Appeal upheld the global seizure by the French Competition Authority (FCA) of electronic mailboxes during dawn raids.

In 2010, the FCA conducted an inspection at the premises of Medtronic France and Biotronik France, undertakings active in the IT medical field, for possible competition law infringements. During the course of the inspection, the inspectors globally seized electronic mailboxes in order to search for evidence of practices prohibited under Article 101 TFEU and its French equivalent.

Medtronic and Biotronik challenged the validity of the search and seizure operation. It brought proceedings before the Paris Court of Appeal, requesting the annulment of the inspection and the restitution of all electronic mailboxes, on the grounds, among others, that the FCA seized communications protected by legal professional privilege (LPP).

In 2011, the Paris Court of Appeal upheld the FCA's global seizure practice, finding that the fact that the FCA had returned the privileged documents to the companies was sufficient to preserve the protection of the rights of defence and the LPP. However, in April 2013, the French Supreme Court (Cour de Cassation) quashed the judgment, holding that the prerogatives of the FCA concerning the global seizure of electronic mailboxes during an inspection must be limited by the rights of defence. More specifically, the communications between lawyer and client are protected by LPP, and must thus...

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