On April 20, 2022, the Cour de cassation, the French Supreme Court, upheld the judgment of the First President of the Paris Court of Appeal validating dawn raids carried out by the French Competition Authority (“FCA”) in the wine and spirits sector in 2019. The Cour de cassation held that the scope of the French legal professional privilege (“LPP”) (secret professionnel) is not limited to attorney-client correspondence relating to conduct in the scope of the proceedings at stake but to any and all proceedings, even unrelated to competition law, where any outside lawyer is representing his or her client’s rights of defense.[1]

Background

In early 2019, the FCA suspected market allocation and price fixing practices in the wine and spirits sector as well as a gun jumping infringement from a player in the same sector. The FCA requested and obtained an authorization of the liberty and custody judges (“LCJ”) ( juges des libertés et de la détention) to conduct dawn raids at the premises of four companies: Compagnie Financière Européenne de Prises de Participation (“COFEPP”), COPAGEF, Castel Frères, and Marie Brizard Wine and Spirits France (“MBWSF”). The FCA conducted dawn raids in April and May 2019. The four companies appealed the LCJ orders, claiming (i) that the evidence presented by the FCA to the LCJ included documents and e-mails protected by French LPP and (ii) that the dawn raids were disproportionate in light of the evidence on which the FCA relied to justify them and the alternative means of investigation available (i.e., requests for information).

The Court of Appeal’s ruling

On December 9, 2020, the First President of the Paris Court of Appeal dismissed the companies’ appeal and upheld the LCJ orders authorizing the dawn raids.[2]

The First President first recalled that the legal advice provided by an outside lawyer to its client is protected by French LPP. As such, correspondence between an outside lawyer and its client containing legal advice cannot be seized, regardless of the channel through which it was exchanged or its format (e.g., e-mail, text message, letter).[3] The First President specified, however, that such correspondence is protected by French LPP if (i) “there is evidence that it is issued or addressed by a lawyer independent of the company” and (ii) it is exchanged “ for the exercise of the rights of the defense in relation to the actual subject matter of the  investigation determined on the basis of the evidence of an infringement of competition law” (underlining added).

Further, the First President ruled that, to claim LPP protection, companies must identify the documents that are allegedly covered by LLP with “sufficient precision.” Those documents must be put in a sealed envelope by the FCA’s agents, and the company must be allowed to submit observations to the FCA. If the company does not specifically identify the documents allegedly covered by LLP, the FCA may lawfully reject the company’s request and seize the documents.

In the present case, the First President of the Court of Appeal found that it did not result from the case file that the FCA would not have returned lawyer- client correspondence relating to the exercise of the client’s rights of defense in relation to the ongoing investigation. The Court also found that the companies did not claim that the FCA agents would have gone beyond a “summary review” of the documents allegedly covered by LLP or would have rejected a specific request to withdraw documents.

The four companies appealed the First President of the Court of Appeal’s ruling before the Cour de cassation. They claimed, in particular, that the First President of the Paris Court of Appeal unlawfully restricted the scope of LPP to correspondence between a lawyer and its client for the exercise of the client’s rights of defense relating to the actual subject matter of the competition proceedings at stake.

The Cour de cassation’s ruling regarding the scope of French LPP

On April 20, 2022, the Cour de cassation largely rejected the companies’ appeal whilst clarifying the scope of French LPP.[4]

The Cour de cassation held that the First President of the Court of Appeal erred in considering that only the lawyer-client correspondence made for the exercise of the client’s rights of defense relating to the actual subject matter of the competition proceedings at stake are covered by LLP and thus cannot be seized. In line with its recent decisions,[5] the Cour de cassation held that it is in all proceedings where any outside lawyer defends his or her client that correspondence between them are protected by LPP.

In the present case, however, the Cour de cassation noted that the companies did not claim that the seizure of lawyer-client correspondence had violated their defense rights in any proceeding other than the proceedings at stake. And the First President of the Court of Appeal had already ruled that the few correspondences relating to the ongoing proceedings had to be returned to the companies. Therefore, the Cour de cassation upheld the First President of the Court of Appeal’s ruling.

Takeaway

While in line with the latest precedent,[6] the Cour de cassation’s ruling reinforces the principle according to which correspondences between clients and their outside lawyers are covered by French LLP, as long as they relate to the exercise of the right of defense, and regardless of the proceedings they concern.

Interestingly, EU courts have considered that correspondence between an outside lawyer and his client may only be covered by EU LLP if it relates to the competition proceedings at stake, or has a relationship to the subject-matter of those proceedings[7] – in line with the initial findings of the French First President of the Court of Appeal. In practice, however, the European Commission has often shown a certain degree of flexibility in applying this principle.


[1]      Cour de cassation, Criminal Chamber, April 20, 2022, No. 20-87.248.

[2]      Paris Court of Appeal, December 9, 2020, No. 19/07453.

[3]      Article 66-5 of Law No. 71-1130 of December 31, 1971, modified by Law No. 2004-130 of February 11, 2004.

[4]      The Cour de cassation found in favor of one of the companies’ claims by ruling that the First President of the Court of Appeal wrongfully rejected for lack of relevance the company’s claim to exclude certain e-mails from the scope of the dawn raid.

[5]      See in particular Cour de cassation, Criminal Chamber, January 20, 2021, No. 19-84.292 (EDF et Dalkia); Cour de cassation, Criminal Chamber, January 4, 2022, No. 20-83.813 (Akiolis groupe).

[6]      See in particular Cour de cassation, Criminal Chamber, January 20, 2021, No. 19-84.292 (EDF et Dalkia); Cour de cassation, Criminal Chamber, January 4, 2022, No. 20-83.813 (Akiolis groupe).

[7]      Court of Justice, Case C-155/79, May 18, 1982, AM&S Europe Limited v. Commission.