{"id":11029,"date":"2026-08-28T12:16:09","date_gmt":"2026-08-28T12:16:09","guid":{"rendered":"https:\/\/www.dhenne-avocats.fr\/saisie-conservatoire-preuves-procedure-etrangere\/"},"modified":"2026-08-28T12:17:59","modified_gmt":"2026-08-28T12:17:59","slug":"saisie-conservatoire-preuves-procedure-etrangere","status":"publish","type":"post","link":"https:\/\/www.dhenne-avocats.fr\/en\/saisie-conservatoire-preuves-procedure-etrangere\/","title":{"rendered":"The other saisie: obtaining evidence in France for foreign proceedings"},"content":{"rendered":"

The saisie-contrefa\u00e7on is not France\u2019s only evidence-gathering instrument. Where there is no infringement to establish, or where the evidence is intended for proceedings run elsewhere, the saisie conservatoire under Article 145 of the Code of Civil Procedure offers a route many foreign counsel overlook.<\/p>\n

It allows investigative measures to be obtained ex parte, before any proceedings, against an opponent or a third party, and the material gathered may be used in foreign proceedings. Unlike the actual seizure for infringement<\/a>, it does not require an action on the merits to be brought within the following month. In exchange, it presupposes that no proceedings are already on foot in France.<\/p>\n

The legal basis<\/h2>\n

Article 145 of the Code of Civil Procedure allows the judge to order, ex parte or in summary proceedings, any legally admissible investigative measure where there is a legitimate reason to preserve or establish, before any proceedings, evidence of facts on which the outcome of a dispute may depend. The provision is not specific to intellectual property \u2014 which is precisely what makes it useful where the complaint is not infringement but, for instance, abusive conduct in licence negotiations.<\/p>\n

Philips v Thales: the demonstration<\/h2>\n

On 13 September 2022 the Paris Judicial Court handed down a decision illustrating exactly that use. After FRAND negotiations broke down, Philips had brought infringement proceedings against Thales on patents essential to the GSM standards, together with discovery proceedings discovery<\/em> in the United States. Thales, seeking to establish that Philips had behaved abusively during those negotiations, obtained a saisie conservatoire in France to gather the documents evidencing that abuse. Philips applied to have the order set aside; the court dismissed the application.<\/p>\n

Two lessons emerge. The first concerns the justification for proceeding without notice: the application must set out the circumstances requiring it, and the court accepted that, the material sought consisting essentially of emails and being readily destructible, that departure was made out. discovery<\/em> proceedings in parallel did not amount to a want of candour, because a saisie conservatoire \u2014 unlike a saisie-contrefa\u00e7on \u2014 does not require the whole of the facts to be set out, only those justifying the absence of notice.<\/p>\n

How it differs from the saisie-contrefa\u00e7on<\/h2>\n\n\n\n\n\n\n\n\n\n\n
<\/th>\nFrench infringement seizure (saisie-contrefa\u00e7on)<\/th>\nSaisie conservatoire (art. 145)<\/th>\n<\/tr>\n<\/thead>\n
Subject matter<\/td>\nProof of infringement<\/td>\nProof of facts on which a dispute may depend<\/td>\n<\/tr>\n
Right required<\/td>\nYes<\/td>\nNo<\/td>\n<\/tr>\n
Subsequent action on the merits<\/td>\nMandatory, within a short period, on pain of nullity<\/td>\nNot required<\/td>\n<\/tr>\n
Expos\u00e9 des faits dans la requ\u00eate<\/td>\nFull<\/td>\nLimit\u00e9 \u00e0 ce qui justifie la d\u00e9rogation au contradictoire<\/td>\n<\/tr>\n
Condition tenant au litige<\/td>\nCompatible with pending proceedings<\/td>\nMust be carried out before any proceedings in France<\/td>\n<\/tr>\n
Grounds for setting aside<\/td>\nNumerous<\/td>\nFewer<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

When to use it<\/h2>\n

Three situations make it preferable. The first is where there is no title to assert: a contractual dispute, a licence negotiation or an allegation of abusive conduct falls outside the saisie-contrefa\u00e7on. The second is where the evidence is intended for foreign proceedings and one does not wish to commit to French litigation within the month. The third lies in the flexibility of the application, whose statement of facts is confined to what justifies proceeding without notice.<\/p>\n

The limit is clear and must be borne in mind from the outset: the measure must take place before any proceedings in France. Litigation already on foot in France on the same subject matter closes the route.<\/p>\n

What to prepare<\/h2>\n

The legitimate reason must be documented before the application is drafted: what is sought, why it exists, and where it is held. The departure from the inter partes principle must be justified by concrete circumstances \u2014 the electronic and volatile nature of the material sought is one, as the court accepted in Philips. The scope of the order, finally, is subject to the same demands as in a saisie-contrefa\u00e7on: too wide, it invites an application to set it aside; too narrow, it leaves the evidence where it lies.<\/p>\n

Key takeaways<\/h2>\n