On January 20, 2021, the Criminal Chamber of the Cour de cassation ruled that none of the attorney-client communications relating to the exercise of the client’s rights of defence could be seized during dawn raids, even those that were not related to the antitrust case in relation to which the dawn raids were carried out.
In November 2016, the French Competition Authority (“FCA”) carried out dawn raids on the premises of three companies of the EDF group operating in the energy sector – Électricité de France (EDF), Dalkia France and EDF Optimal Solutions[1] – in relation to an alleged abuse of dominant position practice.
The FCA placed provisional closed seals on the documents, as is typically done to avoid complex and time-consuming on-site inventory. During the re-opening and purge of the seals, EDF argued that 125 documents could not be seized due to legal privilege. The liberty and custody judge ( juge de la liberté et de la retention) of the Nanterre Tribunal thus ordered that those documents be kept under provisional seals and transmitted to the First President of the Versailles Court of Appeal, who would rule on whether the documents could be seized. In the meantime, EDF challenged the conduct of the dawn raids before the First President of the Versailles Court of Appeal.
In January 10, 2019, the First President of the Versailles Court of Appeal rejected the applications for annulment of the dawn raids and restitution of the documents seized. It held that only the attorney-client communications relating to the exercise of the rights of defence in connection with the antitrust case in relation to which the dawn raids had been carried out could not be seized. EDF appealed.
In January 20, 2021, the Criminal Chamber of the Cour de cassation overturned the order, ruling that none of the privileged correspondence relating to the exercise of the rights of defence could be seized—even those unrelated to the antitrust case at stake. However, the Cour de cassation held, in this case, that the First President of the Versailles Court of Appeal had rightfully considered that the 125 disputed documents could be seized, because EDF had failed to designate which of the 125 documents it considered to qualify as privileged correspondence relating to the exercise of the rights of defence before the First President of the Versailles Court of Appeal.
In addition, the Cour de cassation ruled that the liberty and custody judge can lawfully authorize police officers not to be physically present during the opening of the provisional seals and disposal of the protected documents, provided that the officers can be contacted and make themselves available at any time. In the Cour de cassation’s view, the temporary absence of the police officers during the re-opening of the seals in the EDF case did not harm EDF’s interests because EDF could still seek, through the officer, a review of the process by the liberty and custody judge.
This judgment complements established case-law of the Cour de cassation concerning dawn-raids. It follows and confirms a November 25, 2020 judgment[2] in which the Cour de cassation ruled that privileged correspondence cannot be seized if it relates to “the exercise of the rights of defence.” With this new judgment, the Cour de cassation clarifies that “the exercice of the rights of defence everywhere” does not have to be related to the antitrust matter concerned by the dawn raids. It remains to be seen how the judges will appreciate in practice whether an attorney-client communication relates to “the exercice of the rights of defence everywhere”.
[1] EDF Optimal Solutions has since changed its name to Dalkia France holding.
[2] See Criminal Chamber of the Cour de cassation, 25 November 2020, No. 19-84.304. See French Competition Law Newsletter of December 2020.