By Thomas Penalver, Thomas Lemoine, Clara Marco and Marion Lagrange, University of Montpellier, Centre du Droit de l'Entreprise, Program of Master 2 "Droit du Commerce International"
Overview
The European Convention on Human Rights (hereinafter referred to as the "Convention"), first designed to protect individuals' fundamental rights, has extended its scope towards businesses thanks to the European Court of Human Rights (hereinafter referred to as the "European Court").
Procedural rights interesting business law
According to Article 6 of the Convention "everyone is entitled to a fair and public hearing within a reasonable time". Given the importance of such right in a democratic society, the European Court ruled that Article 6 has to be interpreted broadly (Menarini Diagnostics S.R.L. v. Italie, December 27, 2011).
Thus, the Court confirmed the application of Article 6 to disciplinary and administrative proceedings on several occasions. It gave rise to a set of procedural guarantees on the ground of Article 6 regarding proceedings, judicial control and guarantees for document seizures (Servulo & Associados and others v. Portugal, December 3, 2015) in such administrative investigations.
As such, searches and seizures carried out in business' premises have to respect the audi alteram partem principle in accordance with Article 6. Consequently, natural and legal persons shall always have the possibility to ask for a de facto and de jure judicial control of any decision prescribing such procedures or, if need be, of the measures taken on that ground (Vinci construction et GTM genie civil et services v. France, April 2, 2015).
The European Court has extended the notion of privacy to cover professional information (1.2.1) and business premises (1.2.2).
The European Court recognized the applicability of Article 8 ECHR over attorneys-clients relationships whose confidentiality is now protected (for example, see Robathin v. Austria, October 3, 2012). Intercepting a conversation between an attorney and its client represents a serious violation of the right to respect professional confidentiality according to the Court (R.E. v. United Kingdom, January 27, 2016).
However, this protection is not absolute and some proportional interferences may be accepted by the European judges such as the obligation under French law for attorneys to report suspicion on their clients regarding money laundering activities (Michaud v. France, March 3, 2013).
On December 16, 1992, in the Niemetz v. Germany case, the European Court declared for the first time that the right to privacy could protect the head office of a company. However, one had to note that the rationale of the case lied in the domiciliation of an individual in this head office.
In 2013, the Court recognized Article 8 ECHR's protection to head offices and business premises of all companies stating that the notion of home was to be construed as "including also the registered office of a company run by a private individual and a legal entity's registered office, branches or other business premises" (Saint-Paul Luxembourg S.A. v. Luxembourg, April 18, 2013).
Nonetheless, the court underlined that the intervention of public authorities shall be submitted to adequate safeguards (Heino v. Finland, February 15, 2011). For example, regarding searches in law firms, the Court considered that the attendance of the president of the Bar constitutes an adequate specific guarantee (Xavier da Silveira v. France, January 21, 2010).
Substantial rights interesting business law
Article 9 of the Convention protecting the freedom of thoughts, conscience and religion has been enhanced to preserve corporate image (2.1.1) but cannot shield any commercial practices (2.1.2).
For long, the application of Article 9 ECHR to private individuals has protected the ability for employees to express their religion within companies. Nonetheless, the European Court has insisted on the possibility to limit this protection so as to, pursuant to Article 9§2, protect the rights and freedoms of others, including the company within which the employee works.
Thus, the Eweida and others v. UK case of May 15, 2013 recognized that the necessity for a company to preserve its corporate image could justify limits to employee's religious manifestations. Such limitation must be proportionate and the employer bears the burden to prove the negative impact on its corporate image of the exercise of Article 9§1 freedom.
The European Court considers that a profit-making corporate body cannot invoke freedoms of thought, conscience and religion to justify a corporate practice. The Court recently recalled this principle in the Firma EDV Für SIE v. Germany case (September 2, 2014).
However, bodies or associations with religious and philosophical objects are entitled to invoke Article 9 since the European Court considers that "an application by such a body is in reality lodged on behalf of its members".
Commercial speech is protected under Article 10 of the Convention related to freedom of expression (2.2.1) but may be restricted pursuant to Article 10§2 (2.2.2).
The Council of Europe defines "commercial speech" as a way to "impart information and ideas on economic matters". Since 1989, the European Court provided that all forms of expression, whatever their content, fall within the scope of Article 10. It has held on a number of occasions that this provision is therefore applicable to commercial speech (for instance, see: Remuszko v. Poland, July 16, 2013 and Mouvement raëlien suisse v. Switzerland, July 13, 2012).
However, pursuant to Article 10§2, freedom of expression may be subject to "formalities, conditions, restrictions or penalties" by Member States' domestic regulation. For such an interference to be valid it must:
- be prescribed by law,
- pursuing at least one of the legitimate aims set out in Article 10§2 (exhaustive list),- be necessary in a democratic society to achieve such aims.
Regarding this last condition, Member States are given a wider margin of appreciation than for other forms of expression, as political speech for instance. One has to distinguish, on the one hand expression and content contributing to an issue of public debate or a debate of general interest for society, and on the other hand commercial speech. In this category, money-driven speeches, messages, pictures and contents may be restricted to a larger extent by Member States.
In the Ashby Donald and others v. France case (January 10, 2013), the European Court held that a conviction based on copyright law for illegal reproducing or public communication of copyrighted material could be regarded as an interference with the right to freedom of expression under Article 10 of the Convention. Therefore, such interference by a Member State, restricting a person's or a business' freedom of expression, must comply with the aforementioned conditions.
With regard to advertising for legal services, the European Court ruled that the Bar authority and the Member State's courts are in a better position than an international court to determine the right balance between the dignity of the profession and the right of everyone to receive information about legal assistance. In Morice v. France (April 23, 2015), it recalled that the Member States are given an important flexibility regarding domestic rules on privileges and restrictions linked to lawyers' professional conduct.
Besides, the question of compatibility of prohibition of advertising on tobacco with the right to freedom of expression has been controversial. The European Court found out that such prohibition was proportionate to the legitimate aim of public health's protection (for instance, see: Société de conception de presse et d'édition et Ponson v. France, March 5, 2009).