On January 13, 2026, the Criminal Chamber of the French Cour de cassation (“French Supreme Court”) confirmed its established case law according to which the French Competition Authority (“FCA”) may seize attorney-client documents covered by legal professional privilege (“LPP”) where these were not “prepared for the exercise of a party’s rights of the defense”, i.e., to defend a client who committed, or believes it committed, an offense liable to result in ongoing or anticipated judicial or regulatory proceedings and sanctions.[1]
Background
In November 2022, the FCA conducted dawn raids to gather evidence of anticompetitive practices, including potential supply allocation agreements, in the dairy products sector. Two parties challenged the dawn raids before the President of the Paris Court of Appeal, arguing, inter alia, that the FCA had seized 77 documents relating to attorney-client communications covered by LPP.[2] The President denied the requests to annul the seizures and order restitution, on two grounds.
First, the President held that the applicants had failed to substantiate with sufficient precision certain documents’ connection to “the exercise of the applicants’ rights of the defense”. Second, the President found that a further set of documents bore no connection with the rights of the defense, as they consisted of Excel tables, reports and business contracts that did not appear to have been prepared in connection with pending or anticipated proceedings against the applicants.[3]
Both companies appealed the President’s order before the French Supreme Court.
The French Supreme Court’s decision
The applicants challenged the Court of Appeal’s findings on LPP on two main grounds.
First, they argued that the FCA could not seize privileged documents in dawn raids as the 1971 Legal Professions Statute protects all attorney-client correspondence, irrespective of whether it relates to advice or defense, and no legal provision authorizes the seizure of LPP-protected documents unrelated to the exercise of the rights of the defense. The applicants also submitted that such seizures violate Articles 6 and 8 of the European Convention on Human Rights (“ECHR”).[4]
Relying on established case law,[5] the Court rejected these arguments and held that attorney-client correspondence is only immune from seizure in FCA inspections where connected to the exercise of the rights of the defense.[6] This connection is established where a client who committed, or believes it committed, an offense consults outside counsel in connection with ongoing or anticipated judicial or regulatory proceedings liable to result in criminal or administrative sanctions,[7] including at the pre-litigation stage. This protection applies to all proceedings in which the client is involved, not merely the specific investigation giving rise to the inspection.[8] Conversely, the rights of the defense are not engaged where a person seeks advice absent any offense, solely to secure a legal position, ensure the compliance of a prospective commercial practice, or identify the risks of a specific situation.[9]
The Court found its case law compatible with the ECHR. As to Article 6, the right to a fair trial is guaranteed both by (i) judicial verification of the administration’s application to conduct a dawn raid and seize documents and (ii) review by the Supreme Court. As to Article 8, the Court found that seizing attorney-client correspondence constitutes a “serious interference” with the right to privacy, which however remains justified because such seizure is (i) prescribed by law under Article L. 450-4 of the French Commercial Code, (ii) foreseeable for the individual concerned, (iii) applied in pursuit of the legitimate aim of detecting serious infringements of competition rules, (iv) necessary in a democratic society, and (v) proportionate to that aim.[10]
Second, the applicants argued that the Court of Appeal’s ruling was inconsistent with two previous Supreme Court judgments on financial[11] and tax law,[12] that protected legally privileged documents without further requiring a connection with the rights of the defense. The Court rejected this argument and declined to reason by analogy. It held that those judgments addressed the distinct question of whether the documents at issue fell within the scope of legal privilege,[13] not whether a further nexus with the rights of the defense was required for immunity from seizure.[14]
Accordingly, the Supreme Court dismissed the applicants’ ground of appeal.[15]
Key takeaways
This judgment confirms that attorney-client communications covered by LPP are not, as such, immune from seizure in case of investigations and dawn raids. Two cumulative conditions must be met for those communications to be protected:
- First, a document must be covered by LPP ex Article 66-5 of the 1971 Statute. LPP imposes a duty of confidentiality on the attorney and extends to all attorney-client communications, including attorneys’ communications to their clients, notes from attorney-client meetings, and exchanges between outside counsel except for those labeled “official”, regarding “all matters, whether in the field of advice or defense”.
- Second, the document must present a sufficient nexus with the exercise of a party’s rights of defense in a concrete proceeding. The document must have been specifically prepared for the client’s defense in ongoing or anticipated judicial or regulatory proceedings liable to result in sanctions. Conversely, the FCA may seize materials through which outside counsel merely advise a client on the legality of a contemplated practice, even when covered by LPP, as they are prepared to secure a legal position and do not, as such, establish the requisite connection with the rights of the defense.
Alongside these significant limitations on the protection of attorney-client communications in competition matters, the French Parliament has recently enacted a legislation broadening the scope of LPP to encompass in-house legal advice.[16], [17] Under these rules, judicial and administrative authorities may no longer seize in-house legal advice, in the context of civil, commercial, or administrative proceedings. Unlike attorney-client privilege, in-house confidentiality does not require a nexus with the exercise of the rights of the defense to be exempted from seizure. However, the practical operation of in-house LPP may be limited as it is subject to strict requirements on the author’s qualifications as a legal advisor, the content of the document (a personalized legal consultation addressed solely to the company’s management or supervisory bodies), its labeling,[18] and its classification within the company’s internal records.[19], [20]
In practice, (i) companies should identify documents potentially covered by LPP (e.g., using the label “Privileged & Confidential” in email subject-lines and memos); (ii) during inspections, companies and their counsel should systematically request that any document whose privileged status is disputed be placed under provisional seal; and (iii) legal teams should be briefed on the distinction between LPP and the narrower seizure immunity requiring a defense nexus.
When applicable, companies should frame their requests to outside counsel as directed at preparing a defense against actual or anticipated proceedings, for instance by referencing recent enforcement actions, sector inquiries, or publicly announced enforcement priorities signaling a heightened risk of investigation into the practices at issue. Conversely, clients solely seeking competition law advice on the lawfulness of a contemplated commercial practice should bear in mind that such exchanges would not be immune from seizure in a subsequent antitrust investigation.
[1] Cour de cassation, judgment of January 13, 2026, No. 24-82.390, available here, (“Judgment”).
[2] Paris Court of Appeal, judgment of March 27, 2024, No. 22/19211, available here.
[3] One of the parties also sought the annulment, in the same proceedings, of the FCA’s request that it produce, after the closure of the inspections, certain electronic messages that had not been seized during the inspection. The First President annulled this post-closure production of electronic messaging files on the ground that Article L. 450-4 of the French Commercial Code does not provide for the voluntary submission of files to the FCA after the closure of inspection operations and that such a production constituted a misuse of powers.
[4] Judgment, para. 9.
[5] Cour de cassation, judgment of November 25, 2020, No. 19-84.304, available here and judgment of June 25, 2024, No. 23-81.491, available here.
[6] Judgment, paras. 19-20.
[7] Conseil constitutionnel, Decision of January 19, 2023, No. 2022-1030 QPC, para. 11, available here.
[8] Cour de cassation, judgment of January 20, 2021, No. 19-84.292, available here.
[9] Cour de cassation, judgment of March 11, 2025, No. 24-82.517, para. 27, available here; Cour de cassation, judgment of September 30, 2025, No. 24-85.517, paras. 28 and 32, available here.
[10] Judgment, paras. 28-31.
[11] Cour de cassation, judgment of November 4, 2020, No. 19-17.911, available here. In the area of financial regulation, following a seizure of documents by the French Financial Markets Authority, the Supreme Court’s Commercial Chamber held that the Paris Court of Appeal had to conduct a concrete examination of the documents allegedly covered by legal privilege to determine whether or not they could be seized.
[12] Cour de cassation, judgment of October 8, 2025, No. 24-16.995, available here. This concrete examination is limited to verifying whether the conditions of attorney-client privilege under the 1971 Legal Professions Statute are met (e.g., that a lawyer has authored a document). In tax proceedings, the Supreme Court similarly held that tax authorities could not lawfully rely on the content of attorney-client correspondence to support a tax assessment, without requiring a specific nexus with the rights of the defense.
[13] The Court noted that in the financial law judgment (Cour de cassation, judgment of November 4, 2020, No. 19-17.911, para. 17, available here) the issue was whether documents disclosed to third parties remained covered by legal privilege. Regarding the tax law judgment (Cour de cassation, judgment of October 8, 2025, No. 24-16.995, para. 48, available here), the Court found that the issue was whether the tax administration could rely on the documents at issue to support its assessment, and whether the client had waived the benefit of legal privilege by producing those documents in separate proceedings.
[14] Judgment, paras. 25-27.
[15] However, the Supreme Court upheld the FCA’s appeal regarding post-inspection document production. The Court ruled that a party’s voluntary handover of electronic messaging files after a dawn raid fell outside the scope of Article L. 450-4 of the French Commercial Code, even where the commitment to hand over such files was recorded in the inspection report. The President of the Court of Appeal had exceeded his jurisdiction in annulling the document production. The Supreme Court further held that such production did not constitute an interference requiring an immediate judicial remedy under the ECHR. Rather, its lawfulness could be contested on appeal against the FCA’s final decision. Judgment, paras. 45-46, 49-50.
[16] Law No. 2026-122 of February 23, 2026, on the confidentiality of legal advice given by in-house counsel, available here.
[17] For a detailed overview of the new French regime for the protection of in-house LPP, see our Alert Memorandum of January 22, 2026, available here. The practical significance of this reform is illustrated by the FCA’s Doctolib decision of November 2025, in which the FCA relied on advice from Doctolib’s in-house lawyers as evidence of anticompetitive intent, underscoring the vulnerability of in-house counsel communications under the prior legal framework. FCA Decision, No. 25-D-06 of November 6, 2025, regarding practices implemented in the online medical appointment booking and remote medical consultation solutions sector, available here.
[18] The document must contain the following label: “confidentiel – consultation juridique – juriste d’entreprise’’.
[19] Article 58-1. I. of the 1971 Statute, as modified by Law No. 2026-122 of February 23, 2026, on the confidentiality of legal advice given by in-house counsel, upon its entry into force, available here.
[20] Where the FCA contests the privileged nature of a document during a dawn raid, the document is immediately placed under seal. Within 15 days, the FCA may then submit an application before the juge des libertés et de la détention, who may lift the protection where (i) the statutory conditions for privilege are not satisfied, or (ii) the document was instrumental in facilitating the conduct under investigation by the FCA.