European Union: Janssen Cilag S.A.S V. France: Approval Of Broad And Indiscriminate Seizures By The European Court Of Human Rights

Authored by Lise Damelet.

On April 13, 2017 in Janssen Cilag S.A.S v. France,¹ the European Court of Human Rights (the "Court") confirmed the validity of search and seizure operations carried out by the French Competition Authority at Janssen Cilag's company premises. In keeping with its findings in Vinci Construction and GTM Génie Civile et Services v. France,² the Court considered that the broad and indiscriminate seizure by the FCA amounted to interference with the rights guaranteed by Article 8 of the European Convention of Human Rights (the "Convention"), but that the interference was while pursuing a legitimate aim and therefore "in accordance with the law."

The carrying out of search and seizure operations was authorized by the liberties and detention judge ("juge des libertés et de la détention") of the Nanterre "tribunal de grande instance", according to the provisions of Article L.450-4 of the Commercial Code, which deals with inspections subject to judicial oversight or "in-depth" inspections.  As a result of the operation, which was conducted over two days on May 5-6, 2009, 9985 pages of paper documents and more than 200,000 electronic files were seized, including the entirety of some employees' electronic messaging.

I. Janssen Cilag's Claims

Janssen Cilag's complaints were based on three main arguments.

First, relying on Article 6§1 (right to a fair trial) read in conjunction with Article 8 (right to respect for the home and correspondence) of the Convention, Janssen Cilag asserted that the search and seizure operations infringed the principle of legal privilege. Janssen Cilag argued that the electronic files seized contained legally privileged correspondence and it could not monitor the content of each and every seized document. Moreover, it complained about the broad and indiscriminate nature of the materials seized, made without prior verification of their connection to the subject matter of the inspection.

Second, Janssen Cilag alleged that the number of lawyers permitted to monitor the search operations (three lawyers) had been restricted, in breach of Article 6§3.

Third, relying on Articles 6§1 and 13 (right to an effective remedy) of the Convention, Janssen Cilag complained that it had not had effective recourse by which to obtain a review of the manner in which the searches had been carried out to determine whether legal privilege had been violated. This was mainly because of the French Competition Authority's refusal to share with the company the keywords it used during the search and seizure operations.

II. The Court's Analysis Under the European Convention of Human Rights

The Court did not develop the second and third complaints respectively based on Article 6§3 and Articles 6§1 and 13 of the Convention.

On the contrary, it focused its analysis on the first complaint dealing with the principle of legal privilege. The Court considered it appropriate to examine this complaint from the standpoint of Article 8 of the Convention alone.

The Court considered that, according to the similar situation presented in the case Vinci Construction and GTM Génie Civile et Services v. France, the aim of the search and seizure operations carried out in the Janssen Cilag case was to gather evidence of alleged abuse of a dominant position and other anti-competitive practices. Consequently, the search and seizure operations did not amount to a disproportionate interference in view of the requirements of Article 8 of the Convention.

In domestic law, a company subject to search and seizure operations can ask investigation services of the French Competition Authority for the return of documents protected by the principle of legal privilege. If the protected documents are not returned, the company may then apply to the President of the relevant Court of Appeal for judicial review of the search and seizure operations.

In this case, Janssen Cilag had not claimed that any protected documents had been wrongly seized either before the investigation services of the French Competition Authority, or before the President of the Court of Appeal.

The Court found that the search and seizure operations were therefore carried out in a way consistent with the guarantees provided by the Convention in a practical and effective manner. Thus, "the interference had not been disproportionate" and a "fair balance" had been struck.

III. Conclusion

This case highlights the importance, as a matter of best practices, of marking as legally privileged documents and other lawyer-client correspondence in the ordinary course of business. In addition, it underscores that both during and after search and seizure operations using procedures of domestic law to assert legal privilege to be best positioned to protect the documents from disclosure.

Footnotes

1 ECHR, Janssen Cilag S.A.S v. France, 21 March 2017, 33931/12.

2 ECHR, Vinci Construction and GTM Génie Civil et Services v. France, 2 April 2015, 60567/10 and 63629/10.

The author wishes to thank Anahita Kazemzadeh, Trainee Solicitor in the Paris Antitrust & Competition Group, for her assistance with the preparation of this paper.

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