Whereas the trend was to ensure legal privilege with the enactment of Law n°2021-1779 on Confidence in the judiciary, the French Supreme Court has adopted a strict interpretation of attorney-client privilege in the context of antitrust investigations leading to a harsh restriction of the scope of protected documents.
Indeed, this law has introduced at the article 56-1-1 of the French Criminal Procedure Code, a provision allowing individuals under a criminal dawn raid to raise an objection if they believe that documents being seized are covered by attorney-client privilege. In that case, the documents shall be placed under seal, subject of an independent report and subsequently forwarded to the liberty and detention judge, in charge to decide whether or not the documents can be joined to the files or must be returned.
In a judgement dated 24 September 2024, the Criminal Division of the French Supreme Court (‘Cour de Cassation’) ruled that conversations and documents exchanged between a lawyer and his client may be seized during an antitrust dawn-raids, if they do not fall within the scope of “the exercise of the rights of defense”.
In this case, the liberty and detention judge authorized dawn-raids, under the provision of article L.450-4 of the French Commercial Code during which digital and paper documents belonging to a company were seized by the DREETS (Direction régionale de l’économie, de l’emploi, du travail et des solidarités).
The company challenged the seizure of those documents before the First President of the Versailles Court of appeal, arguing that they were covered by the attorney-client privilege. As the Court of Appeal dismissed its action, the company brought the case to the Cour de Cassation. In its judgement, the Cour de cassation confirmed the ruling of the First President of the Versailles Court of Appeal and rejected the company’s claims.
First, the Cour de cassation explained that although all documents exchanged between attorney and client were covered by legal privilege, it was nonetheless possible to seize them in the course of a dawn-raid conducted under the provision of article L.450-4 of the French Commercial Code, i.e investigations regarding anti-competitive practices, as long as those documents do not fall within the scope of “the exercise of the rights of defense”.
Second, as the company argued that the DREETS had failed to apply the specific procedure laid down by article 56-1-1 of the French Procedure Criminal Code, introduced by the Law no. 2021-1729 on confidence in the judiciary, the Court ruled that this procedure was not applicable to a dawn-raid conducted in competition law matters but limited to criminal dawn-raids.
Third, the Cour de cassation dismissed the company’s argument that the judge had failed in his duty by not sorting out the documents that were subject to the exercise of the rights of defense among all the documents selected. The Court ruled that, in case of a dispute over the nature of the items seized, it is up to the company to identify precisely which privileged documents fall within the scope of “the exercise of the rights of the defense”.
The position of the French supreme court is particularly significant as it seems to be inconsistent with the judgement adopted by the Court of Justice of the European Union (CJEU) on 26 September 2024. Indeed, the CJEU ruled in favor of a broader scope of attorney-client privilege asserting that this protection, guaranteed by article 7 of the Charter of Fundamental rights, is fundamental to the right to a fair trial and must be respected in all legal proceedings. The CJEU stated that legal advice provided by a lawyer in matters of company law is covered by attorney-client privilege: as a consequence, any decision requiring a lawyer to disclose all related documentation and information relating to his or her relations with his or her client, concerning such legal advice to the authorities would interfere with the right to confidentiality between them. It stems from the above that this protection covers not only documents that fall within the scope of the “exercise of the rights of defense” but also legal consultations.
We can only hope that, in line with this reasoning, the position of the Cour de cassation will evolve in order to ensure a more effective right of defense of the companies visited. Indeed, this approach is really detrimental as Attorneys, when drafting a legal consultation, have to bear in mind the risk of this consultation to be seized by the competition authorities.
Grall & Associés