Since May 2011, documents produced or held by the French competition authority are no longer accessible to the public.
Through law No 2011-525, the initial French act allowing individuals or companies to request access to documents held by the government, the public administration or agencies was amended earlier this year in order to clarify the status of documents in the possession of the competition authority.
In its amended version, the text protects documents which have been produced or received by the competition authority “in the framework of its powers of investigation, prosecution and decision”, and can therefore be exempted from the general right of access.
Legal Certainty
This amendment should bring more legal certainty to the current practice and aims to put an end to discussions around the nature of documents which could or could not be disclosed to members of the public, or on the timing of such disclosure. A revision of the rules for public access to documents held by EU institutions and agencies is also undergoing.
Damage claims
It is interesting to note that the French law was adopted in the context of an increasing number of rulings by the French courts concerning the nature of documents seized or requested by the competition investigation services, and therefore appearing in the investigation file.
Numerous requests for access to documents addressed to competition authorities are prompted by the need to find evidence in order to substantiate damages and follow-on actions by companies claiming to have suffered from the anticompetitive behaviour of others. Such evidence can be found in the files of antitrust authorities. It is therefore essential to preserve the right to confidentiality and to professional secrecy of the companies involved in anti-competitive practices while protecting the rights of companies having suffered a damage. If the damage can be established by such companies, it is sometimes more difficult to establish the causal link between this damage and the infringements for which the wrongdoers have been sanctioned; without evidence of such link, damages actions cannot succeed.
Entire e-mail accounts?
In this context, the Paris Court of Appeal, which has jurisdiction over decisions of the competition authority, has issued orders in three requests for interim relief, clarifying the lawfulness of the seizure by competition services of entire e-mail accounts. So far, the French authority has developed a theory according to which it is technically impossibility to select the correspondence specifically targeted by the investigation, which, according to the authority, justified that the entirety of e-mails was seized, including messages possibly covered by legal privilege. Parties concerned contested this approach and sought the annulment of search and visit proceedings in the framework of antitrust investigations. Such annulment would have deprived the authority from evidence that a competition law infringement may have been committed.
The three orders issues by the Paris Court confirm that the fact that legally privileged documents or correspondence may form part of the seized email does not render the investigation measure void in itself; it also states that it cannot challenge the authority’s view that currently technology does not allow the selection of non legally privileged emails.
In France, the question therefore remains of the extent to which legally privileged e-mails extracted by the competition authorities may be protected and kept out of the scope of the investigation.
