Home visits: the president of the TGI cannot delegate his powers remotely

Imagine: you are a property owner in Lagord, in the suburbs of La Rochelle. One morning, competition officials knock on your door, armed with an order authorising a home visit. The order was signed by a president of the tribunal de grande instance (TGI) located hundreds of kilometres away, in Paris. And to top it all, the same magistrate decided that he alone would decide any disputes, even though the operations are taking place in Lagord and Saintes. You wonder: is this legal?

The right to an effective remedy and respect for the rules of territorial jurisdiction are fundamental principles. In matters of home visits authorised by Article 48 of the Order of 1 December 1986 (a text allowing the president of the TGI to order searches to seek evidence of anti-competitive practices), the judge must remain close to the field. Otherwise, how could you effectively challenge a seizure of your documents?

This is exactly what the Cour de cassation reminded in a judgment of 21 March 2000. It set aside the decision of a president of the TGI who, after authorising visits in Nanterre, Colmar and Strasbourg, also issued a compétence du juge judiciaire">commission rogatoire (delegation of power) to his local counterparts to supervise the operations, while reserving the power to judge disputes. The High Court considered that he exceeded his powers and violated Article 48. Explanations.

The facts: a story that happens every day

The case opposed industrialists suspected of illegal collusion to the competition authority. The president of the TGI of Paris, seized by the minister, authorised home visits to several companies located in Nanterre, Colmar and Strasbourg. For the operations, he issued a commission rogatoire to the presidents of the TGIs of those cities, entrusting them with the supervision of the seizures. But, in the same order, he also decided that all disputes relating to the conduct of the operations would be brought before himself, in Paris.

The targeted companies challenged this provision. They considered that the Parisian judge was not competent to hear disputes arising from searches carried out in other jurisdictions. Indeed, Article 48 of the 1986 Order provides that the president of the TGI in whose jurisdiction the premises to be visited are located is solely competent to authorise the visit and to hear disputes. The commission rogatoire cannot transfer this power to judge.

The Paris Court of Appeal upheld the companies' argument, and the Cour de cassation confirmed. It held that the Parisian president had exceeded his powers by reserving the litigation to himself, when he had himself recognised that the operations were taking place elsewhere. In short, one cannot be both the one who gives the mission and the one who controls it remotely.

The reasoning of the court — broken down

The Cour de cassation relies on Article 48 of the Order of 1 December 1986, which provides that "the president of the tribunal de grande instance in whose jurisdiction the premises to be visited are located" may authorise visits. This text is of public policy: it cannot be circumvented by a delegation of jurisdiction. The Court recalls that the commission rogatoire (an act by which a judge asks another judge to perform an act on his behalf) can only concern the material execution of the operations, not the power to decide disputes.

In this case, the Parisian president had issued a commission rogatoire to the presidents of Nanterre, Colmar and Strasbourg to "carry out the operations", but he had reserved the right to rule on disputes. However, the Cour de cassation considers that this reservation is incompatible with the spirit of the text: the judge who supervises the operations on site is best placed to know the difficulties. Why? Because he can travel, hear the parties, and observe the material facts. A distant judge cannot assess the circumstances as finely.

The decision is a confirmation of constant case law: territorial jurisdiction is a guarantee for litigants. It is part of a line of judgments protecting the right to an effective remedy. Note that the lower courts (Court of Appeal) had already sanctioned this practice, and the Cour de cassation followed them. There is no reversal here, but a firm reminder.

What this changes for you — concretely

For a landlord owner in Saintes: If officials from the DGCCRF (Directorate General for Competition) show up at your home with an order signed by a judge in Bordeaux, and you want to challenge the seizure of your documents, you must seize the judge of the place of the visit, not the one who signed the order. If the latter claims to be solely competent, you can invoke this judgment. Example: your commercial tenant is suspected of collusion with competitors; the officials seize your client files. You challenge: it is before the TGI of La Rochelle (competent for Saintes) that you must act, not before the TGI of Bordeaux.

For a co-owner in Lagord: Visits may concern common parts. If the order comes from a Parisian judge, you can demand that disputes be decided locally. In practice, you must, within 15 days of the visit, seize the president of the TGI of your department. The cost? A lawyer is mandatory before the TGI, expect €1,500 to €3,000 for an urgent application (référé). But if you win, the costs may be borne by the administration.

For a buyer: Before buying a business, check whether home visits have taken place. If so, ensure that disputes were brought before the correct judge. Otherwise, the procedure could be annulled, but this may also damage the company's reputation.

Four tips to avoid this type of dispute

• Check territorial jurisdiction upon notification: As soon as you receive a visit order, look at which court authorised the visit. If it is not that of your department, note it: this is a ground for challenge.
• Do not sign anything without a lawyer: The officials may ask you to sign a report. You have the right to refuse to sign and to request time to consult a lawyer. Do not give in to pressure.
• Keep all documents: Keep a copy of the order, the report, and note the names of the officials. All this will be useful for challenging.
• Act quickly: Challenges must be made promptly, often within 15 days or a month. A lawyer specialising in competition law or civil procedure can help you.

Further reading: related case law and developments

This decision is part of a series of judgments from the Cour de cassation in the 1990s-2000s that strictly regulated the powers of the judge in matters of home visits. For example, in a judgment of 28 January 1997 (No. 95-15.234), the Court had already held that the president of the TGI could not delegate to another judge the power to authorise the visit itself. Here, the innovation is that even the competence to decide disputes cannot be reserved to a distant judge.

Since then, practice has calmed down: presidents of TGIs ensure they respect territoriality. However, with the centralisation of competition cases in Paris (Autorité de la concurrence), tensions persist. Some Parisian judges still try to centralise litigation, but this judgment sets a clear barrier. For the future, the question may arise with cross-border or digital visits (cloud), where the location of data is difficult to locate. But for now, the principle is simple: the local judge remains the master.

Checklist before acting

• Q: What if the order mentions an incompetent judge?
  A: Immediately seize, by urgent application (référé), the president of the TGI of the place of the visit to challenge the jurisdiction. You may also invoke the nullity of the order.
• Q: Can I refuse entry to the officials?
  A: No, the order is enforceable. But you can challenge after the visit. Refusing to comply is an offence of obstruction (Article L. 450-4 of the Commercial Code).
• Q: What are the time limits for challenging?
  A: Generally, 15 days from notification of the report to seize the judge by urgent application. After this period, the challenge is inadmissible.
• Q: How much does a challenge cost?
  A: Lawyer's fees for an urgent application vary from €1,500 to €3,000. If you win, you can request an indemnity under Article 700 of the Code of Civil Procedure (irrecoverable costs).
• Q: Can the administration appeal if I win?
  A: Yes, the administration may appeal the order of the local judge. But this does not suspend the execution of the decision if the judge ordered the return of documents.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →