French Supreme Court confirms a slight extension of the legal privilege scope

31 March 2022

In a judgment dated 26 January 2022, the French Supreme Court (“Cour de Cassation”) confirmed the extension of the protection granted to attorney-client correspondence to internal documents emanating from in-house counsels as long as they summarised legal advice received from outside counsels

This case was part of an investigation into an illegal price-fixing agreement in the household appliances distribution sector which led the French Competition Authority (the « FCA ») to impose a combined fine of € 189 million to six appliance manufacturers in December 2018 (see Decision 18-D-24 of 5 December 2018 regarding practices implemented in the household appliances sector).

During the dawn raids, the FCA seized various documents including internal emails exchanged between in-house counsels which referred to the legal defence strategy suggested by their external lawyers.

Considering that the operations had been carried out in an irregular manner and thus, seeking to annul the dawn raids, the company appealed before the Paris Court of Appeal, which did not annul the raids but found that the FCA unlawfully seized “privileged” internal communications.

The FCA then appealed to the Supreme Court, arguing that only documents directly sent to or received by outside counsels of the company are covered by legal privilege. Indeed, the FCA considered that documents which are not communications or exchanges between external lawyers and their clients cannot benefit from any confidentiality protection, even if they are expressly referring to a risk assessment and a defence strategy prepared by the said external lawyers.

However, the Cour de cassation did not follow this reasoning.

After verifying that the Paris Court of Appeal had carefully noted that the documents at stake, although not directly emanating from or addressed to their external lawyers, were clearly part of a defence strategy prepared by the company’s attorneys and intended to prepare the company’s defence in the event of a future unannounced inspection by the FCA, the judge confirmed the Court of Appeal’s stance.

In other words, the seizure of documents that discuss legal defence strategy prepared by external counsels also infringes the legal privilege and the rights of defence, regardless of whether or not they are directly addressed to or from the company’s attorneys.

This flexible approach of the French Supreme Court regarding the criteria for attorney-client privilege will significantly ease internal exchanges between in-house lawyers in France as it will allow them conveying content related to a defence strategy prepared by their attorneys but also summarizing communications with their attorneys or commenting on them.

It will also imply a more thorough review of the documents that would henceforth fall within the scope of the legal privilege during dawn raids and it may lead to an increasing number of challenges before the courts on that particular ground.


Charles-Henri Calla / Clara Servalli

Avocats à la Cour

Grall & Associés