Competition inquiries: Legal status of the documents seized or copied

The increasing number of antitrust dawn raids and seizures raises the question of the scope of the National Competition Authority’s and the European Commission’s rights regarding seized or copied documents. In principle, the search warrant issued by the judge constitutes the strict scope of the antitrust officers’ investigative power. To ensure compliance with this principle and with the company’s rights, some precautionary measures should be considered. While the law does not explicitly provide for the presence of a lawyer, it does not prohibit it either; nor does the law preclude the possibility for "the occupant des lieux" to appoint a representative who may be his lawyer. The lawyer’s attention will then focus particularly on: the investigative techniques used by the officers to conduct electronic seizures (massive or targeted); the documents covered by Legal Privilege; the limits imposed on the officers (right of search, multi-purpose documents); and their obligations, particularly their obligation to draw up an inventory. The European procedure does not provide for specific means of recourse against visits and seizure operations. The Court of First Instance of the European Communities has recently reiterated and clarified the fundamental principles governing the analysis of documents seized during searches. These principles should serve to guide the French authority on the permissible use of seized documents for which an appeal has been brought before the court.

*This article is an automatic translation of the original article, provided here for your convenience. Read the original article. 1. Investigations by the European and national competition authorities are increasingly frequent, whether they act on complaints or denunciations under leniency programmes. In order to benefit from the surprise effect and thus avoid the disappearance of the documents needed to prove the suspected practices, the said authorities have a strong tendency to prefer cumbersome investigations which give them more extensive powers, although framed by the texts and case law. 2. Thus, among the powers of investigation, competition authorities are increasingly favouring surprise visits which are in fact real searches, even if the competition authorities prefer to

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Frédéric Puel, Laurent François-Martin, Competition inquiries: Legal status of the documents seized or copied, May 2008, Concurrences N° 2-2008, Art. N° 16350

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