Guidelines
For inspection by French Competition Authorities.
What documents must the officials present?
French Competition Authorities
- The officials may carry out an inspection on a company’s premises without any warrant in case of a “simple” investigation or with a judicial warrant delivered by a French Juge des libertés et de la détention in case of a “formal” investigation. The extent of their powers will depend on the type of inspection carried out. Exceptionally, a criminal investigation can be carried out.
In case of a “simple” investigation, i.e. in the absence of judicial warrant, the officials may have access to any business premises, sites or vehicles used for professional purposes. They are also entitled to ask any person present on the premises to provide them with any document pertaining to the investigation: Such documents may be copied but not seized. The officials have fewer coercive powers than in “formal” investigations since they are not entitled to search the premises or seize documents or files but can only collect the information and documents which they are provided with on a voluntary basis. The officials cannot formulate general or vague requests but should seek specific information or documents (e.g. invoices sent to a group of clients). If in doubt, ask the officials to reformulate their request.
In case of a criminal investigation that may be ordered by the Public Prosecutor in the context of a preliminary investigation or more generally at the request of an investigating judge who issues a letter rogatory, powers of the officials (policemen and/or agents of the Competition Authority benefiting from a letter rogatory) are different.
The present guidelines apply to “formal” investigation procedures.
- In any case, the officials have to inform the inspected company of the subject matter of the inspection and have to present their professional credentials and/or their ID cards if required to do so. Make a copy of these documents. However, officials are not obliged to wait for the external lawyers arrival.
- Officials acting under a judicial warrant should notify the judicial warrant to the occupier of the premises or to a person entitled to represent the company.
- Read the document carefully and check the following points:
- is your company the addressee?
- what accusations are being raised against your company?
- where may the officials search?
- After having examined the judicial warrant, make sure that any reservation that you may have is mentioned in the record of the investigation before signing it. A copy of the judicial warrant should be delivered against receipt or signature of the record by the occupier of the premises.
Where and how may the officials search?
French Competition Authorities
- Where there is a judicial warrant for the inspection, the officials are entitled to search the company premises, private premises, rooms, cars, desks, IT systems, etc., that fall within the scope of this warrant. The inspection can only be initiated between 6 a.m. and 9 p.m. and must in principle take place in the presence of the occupier of the premises. Do not leave the premises. The inspection is in such case carried out in the presence of police officers.
- In principle, you are only obliged to passively tolerate the inspection. You are therefore not required to actively assist in the inspection (e.g. by providing information about where documents are kept and the content of files). However, you may not refuse the inspection. If you refuse the inspection, the officials can resort to direct force and this refusal can constitute the offence of resistance to the fulfilment of their duties by the officials.
What may the officials search?
French Competition Authorities
- Never voluntarily surrender any objects or documents. Officials should always carry out a formal seizure. Do not resist such formal seizure. Always be courteous and cooperative but do not go beyond the requests made by the officials.
- The officials have a right to examine, copy and seize any documents relating to the subject matter of the investigation. Originals, as well as copies, may be retained. Important: Always make a copy of each copied or retained document.
- The following documents cannot be inspected, retained or copied by the officials (except in case of global seizure of email boxes – common in practice):
- Correspondence between the company and an external lawyer related to the exercise of defense rights (legal privilege);
- Internal company documents only reflecting and/or containing legal advice given by an external lawyer (legal privilege);
- Private documents can be inspected if they are strictly relevant to the subject matter of the inspection.
- Onus is on the company to prove the privileged nature of each correspondence. If the officials want to inspect such privileged documents, only show those parts of these documents which prove their privileged character. If the privileged character of certain documents is contested or in case of global seizure, in particular of email inboxes, request that these documents be placed in temporary sealed envelopes and mention it in the record.
- Officials are entitled to search and even seize computers (including private messaging systems used for professional purposes such as WhatsApp or Telegram). However, request that computers are left at the company. Grant access to computer files by providing passwords. Request that the officials make only random checks of folders and files which are not related to the subject matter of the investigation.
- Important: Always make an electronic copy of all computer files which the officials take away or copy.
- The officials cannot seize documents that they found at random and that could solely serve to evidence another infringement to competition law.
However, officials can seize these documents when they deal both with the object of the investigation and with another infringement. In this case, ensure these documents are mentioned in the record as the other documents.
- All evidence seized or copied is listed in the record. The record mentions, for each document, the place where it was seized. A copy of this record should be delivered to the occupier of the premises.
Before signing this record, ensure that it is accurate and express any reservation you may have about it (in particular, any reservation concerning the seizure/copy of a document outside the scope of the investigation or covered by legal privilege).
Originals are returned to the company within six months after the Competition Authority's decision has become final.
- Seals can be affixed on all business premises, documents and objects but only for the time of the inspection. Do not break seals. Breaking a seal constitutes a criminal offence and is subject to financial penalties.
Who may be questioned by the officials?
French Competition Authorities
The officials are entitled to request explanations from the occupier of the premises (usually the General Counsel) or his/her representative, even if these hearings often take place afterwards.
In any case, any statements made – which must be duly recorded - may have consequences on the personal liability of the person being questioned.
Ask to be questioned only in the presence of your external lawyer. In case the officials refuse to wait for an external lawyer, ensure that your request and their refusal are acknowledged in the record.
- The officials can only ask for explanations on facts and documents related to the investigation and receive spontaneous declarations but not carry out formal hearings. Important: Any declaration that is formally recorded by the officials will be deemed spontaneous unless a reservation is made by the declarant.
- The officials cannot ask the persons interrogated to make a confession or to answer questions that would lead them to incriminate themselves or the company. This right does not cover mere facts. If in doubt, ask the officials whether the answer to their question is covered by the right to remain silent and make sure the answer is mentioned in the record.
- Answer only questions actually relating to the purpose of the inspection. Only answer to the questions asked. Give short and precise answers and remain factual. Do not qualify the facts or express assumptions, personal feelings or impressions. Tell the officials if you do not know the answer to a question.
- Read the record carefully, especially since questions are not transcribed in this record. Express all reservations you may have before signing it.