Visits and Seizures: A Specific Remedy Must Be Respected

Imagine: you are a property owner in Uzès, your public works company has just been raided by agents of the DGCCRF. Whole boxes of documents are taken away, your computers seized. You believe the search was abusive. Whom should you contact? The Competition Authority? The court of appeal? The answer is not so simple, and a procedural error can cost you dearly. This is precisely the issue decided by the French Supreme Court in its judgment of 21 October 2014.

This decision concerns a case of public works contracts for underground utilities (gas and electricity) in the Nîmes region. Companies suspected of illegal collusion had their premises visited and documents seized under judicial authorisation. But the challenge to the lawfulness of these seizures took a wrong procedural path. The High Court had to restate the applicable law: there is a specific remedy, and it cannot be circumvented.

For property owners and real estate professionals, this principle is fundamental. It ensures that challenges to the conduct of visits and seizures are examined by the competent judge within a strict framework. But what happens if you go down the wrong path? The consequences can be irreversible. Let us analyse this judgment together and its practical implications for you.

The Facts: A Story Like Many Others

In the context of an investigation into anti-competitive practices in the market for mixed underground works (gas and electricity), the Competition Authority had applied to the liberty and detention judge for authorisation to conduct visits and seizures at the premises of several companies, including one based in Bagnols-sur-Cèze. The operation, carried out in 2010, led to the seizure of numerous documents and computer files.

The companies concerned, considering that the seizures were unlawful (in particular because the agents allegedly exceeded the authorised scope), referred the matter to the Competition Authority itself, and then to the Paris Court of Appeal on the basis of Article L. 464-8 of the Commercial Code (which allows challenges to decisions of the Authority). Their argument: the lawfulness of the seizures should be assessed in the context of the review of the decision on the merits.

But the French Supreme Court did not follow this reasoning. It recalled that Article L. 450-4 of the Commercial Code provides for a specific and exclusive remedy to challenge the conduct of visits and seizures: a direct appeal to the First President of the Court of Appeal, within fifteen days of the service of the report. By taking the route of an appeal against the Authority's decision, the companies had taken an impermissible procedural detour.

The Court’s Reasoning — Analysed

In its judgment of 21 October 2014, the French Supreme Court quashed the judgment of the Paris Court of Appeal, which had examined the lawfulness of the seizures. Its reasoning is clear: Article L. 450-4 of the Commercial Code (which governs visits and seizures in competition matters) establishes a specific remedy, derogating from the ordinary law. This remedy allows the First President of the Court of Appeal to review the conduct of the operations, and in particular the lawfulness of the seizures.

On the other hand, Article L. 464-8 of the same Code (which provides for an appeal against decisions of the Competition Authority) cannot serve as a basis for challenging material acts carried out during a visit authorised by a judge. The court of appeal seised on this basis has no jurisdiction to assess the lawfulness of the seizures. It is a matter of the allocation of jurisdiction between judges: the judge of the visit (the First President) is the only one who can review the lawfulness of the operations on the ground.

This solution is neither a revolution nor a reversal: it confirms a consistent line of authority. The French Supreme Court simply reminds that remedies are confined to specific texts and that they must not be confused. For litigants, this means that any challenge to a visit or seizure must be immediate, within fifteen days, and directed against the report, not against the subsequent decision of the Authority.

The companies' argument was nevertheless attractive: since the Authority uses the seized documents to support its decision, the review of the lawfulness of those documents should be possible in the context of the appeal against that decision. But the French Supreme Court considered that the legislature intended a swift and specialised review, entrusted to the judge who authorised the visit. Only after this review can the documents be used in the proceedings on the merits.

What This Means for You — Practically

For landlord owners, tenants, co-owners, or real estate professionals, this decision has direct implications if your professional or commercial premises are subject to a visit and seizure in the context of a competition investigation (collusion, abuse of dominant position, etc.).

If you are the owner of a commercial property in Bagnols-sur-Cèze leased to a company, and that company is raided, you might be tempted to challenge the seizure of your personal documents (leases, contracts) that have nothing to do with the investigation. Know that your challenge must be brought within 15 days of the service of the visit report, before the First President of the Court of Appeal within whose jurisdiction the visit took place (for example, the Nîmes Court of Appeal). After this deadline, you lose any right to challenge the lawfulness of the seizure.

For a co-owner whose common area is visited, the same principle applies: the syndic must act quickly, otherwise the seized documents may be used against the co-ownership without the possibility of being excluded.

For a tenant who has stored personal belongings in their professional premises and sees those belongings wrongly seized, the remedy is the same: the First President must be seised within fifteen days. Do not rely on a later appeal to the Competition Authority or the court of appeal ruling on the merits: they have no jurisdiction.

In practice, the amounts at stake can be considerable: an unlawful seizure can lead to the annulment of the entire procedure, which could represent hundreds of thousands of euros in fines avoided. Conversely, a late or misdirected challenge deprives you of this protection.

Four Tips to Avoid This Type of Dispute

• Act within 15 days: as soon as the visit report is served, note the date and consult a specialised lawyer. The deadline is short and mandatory.
• Do not confuse the remedies: do not bring your challenge before the Competition Authority or the court of appeal ruling on the merits. The only competent judge is the First President of the Court of Appeal (via an interim application or a motion).
• Make a detailed inventory of seized items: during the visit, request a copy of the report and check that all documents and objects seized are listed. Any omission can be challenged.
• Anticipate visits: if you operate in a sensitive activity (public contracts, regulated sectors), train your teams to react in the event of a visit: not to obstruct, but to note any excesses, take photos, and contact a lawyer immediately.

Further Reading: Related Case Law and Developments

This decision is part of a consistent line of authority from the French Supreme Court. One can cite the judgment of 28 May 2013 (No. 12-17.085), which already held that the challenge to the conduct of visits and seizures falls exclusively under Article L. 450-4. Similarly, the French Supreme Court has specified that the specific remedy is available even if the visit was authorised by an investigating judge (Cass. com., 10 July 2012, No. 11-23.386).

The trend is therefore towards a strict division of jurisdiction: the judge of the visit reviews the lawfulness of the operations, the judge on the merits reviews the Authority's decision. No mixing of roles is tolerated. For the future, it is likely that this case law will continue, as the legislature intended a swift and effective procedure for competition investigations. Litigants must therefore be particularly vigilant as to compliance with deadlines and formalities.

In Practice: What to Do

FAQ

1. I have just undergone a visit and seizure, what is the first reflex? Keep the report, note the date and time. Contact a competition lawyer within 48 hours to prepare a possible challenge.

2. Can I challenge the seizure before the Competition Authority? No, the Authority is not competent to assess the lawfulness of seizures. Only the First President of the Court of Appeal can do so, within 15 days.

3. What happens if I miss the 15-day deadline? You permanently lose the possibility of challenging the lawfulness of the operations. The seized documents may be used against you in the proceedings on the merits.

4. Does the challenge have suspensive effect? No, the challenge is not suspensive: the documents remain seized during the review of the challenge. But if the judge annuls the seizure, they must be returned.

5. How much does such a challenge cost? Legal fees vary depending on complexity, but expect between €1,500 and €5,000 for proceedings before the First President. To be weighed against the stakes: a fine of several million euros may be avoided.

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