French Supreme Court extends legal privilege to all attorney-client correspondence relating to rights of defence

On 20 January 2021, the criminal chamber of the French Supreme Court held that in the context of a dawn raid carried out by a competition authority, all attorney-client correspondence relating to the right of defence is protected and therefore exempt from seizure. Contrary to what previous decisions in this area might have suggested, this protection is not limited to attorney-client correspondence relating to the competition issues being investigated. 

Background – Dawn raids conducted in the energy sector

In November 2016, the French Competition Authority (FCA) conducted dawn raids within the premises of three companies in the energy sector that were suspected of having committed an abuse of dominant position. As a result, FCA’s agents seized several documents, including a number of communications between the companies and their attorneys.

The companies involved claimed that these documents were unlawfully seized and should be returned and not used in the proceedings. This claim was dismissed by the Court of Appeal in January 2019 on the grounds that the litigious documents were not related to the competition case that gave rise to the dawn raids. The companies therefore escalated the matter to the French Supreme Court.

A previous Supreme Court decision cast doubts on the scope of the legal privilege

In a previous decision of November 2020, the French Supreme Court already held that attorney-client correspondence may not be seized in the context of a dawn raid if such correspondence relates to the exercise of the rights of defence. It was unclear however whether the right of defence should be interpreted narrowly as covering only the attorney-client correspondence linked to the case under investigation.

Clarification towards a broad interpretation of the legal privilege 

In its decision of 20 January 2021, the French Supreme Court clarified that the legal privilege extends to any correspondence exchanged between an attorney and its client relating to its rights of defence, regardless of whether it concerns the practices being investigated or more generally a competition law issue. 

This decision should be welcomed as it reinforces the protection of communications exchanged by companies with their outside counsels (unlike internal communications within their legal department which does not benefit from the legal privilege under French law). These communications will have to be returned if they are seized by a competition authority during a dawn raid. In the context of an appeal following a dawn raid, it will therefore be in a company's best interest to check whether some of the documents seized were covered by legal privilege and to identify precisely which documents are protected as such, so that they will not be used in the proceedings.

The French Supreme Court’s decision of 21 January 2021 is available here (in French). 

If you want to test your and your organisation's preparedness for a dawn raid investigation by competition authorities, please try our free Dawn Raid Game available in English, Finnish, French or Japanese. If you are interested in deploying a customized version of this Dawn Raid Game in your organization, please contact us. 

For more information contact Thomas Oster and Eliott Costet.

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