French Supreme Court Adopts a Restrictive Conception of Attorney-Client Privilege
A decision handed down by the French Court of Cassation may affect the scope of attorney-client privilege in France.
On September 24, 2024, the Criminal Division of the Cour de Cassation ("Court of Cassation") issued a noteworthy ruling on the enforceability of attorney-client privilege in the event of an antitrust dawn raid (appeal no. 23-84.244). On this occasion, the Court of Cassation rejected the appeal of a company challenging the seizure of documents during a dawn raid in the field of competition law, based on article L. 450-4 of the French Commercial Code.
More specifically, the company challenged the seizure of documents covered by attorney-client privilege. In addition, it criticized the DREETS (Direction régionale de l'économie, de l'emploi, du travail et des solidarités) for failing to apply article 56-1-1 of the French Code of Criminal Procedure during the raid. This provision (resulting from Law no. 2021-1729 on confidence in the judiciary) introduced a new procedure enabling a person who is the subject of a criminal dawn raid to object to the seizure of documents that he or she considers to be covered by attorney-client privilege. The documents are then placed under seal, are the subject of an independent report by the police officers who participated in the raid, and are subsequently forwarded to the liberty and detention judge, who must issue a reasoned order within five days of receipt of the documents.
In its decision, the Court of Cassation adopted a very restrictive interpretation of attorney-client privilege, ruling that:
- Documents covered by attorney-client privilege may be seized during an antitrust dawn raid if they do not relate to the "exercise of the rights of the defense."
- In the event of a dispute as to the nature of the items seized, it is up to the company to identify precisely which privileged documents fall within the scope of the "exercise of the rights of defense."
- The procedure introduced by article 56-1-1 of the French Code of Criminal Procedure applies to criminal dawn raids, not to dawn raids in competition law matters.
This decision appears to be in tension with a recent decision by the Court of Justice of the European Union ("ECJ") dated September 26, 2024 (n° C-432/23), in which the ECJ held that the attorney-client privilege is a right guaranteed by Article 7 of the EU Charter of Fundamental Rights opposable, in the case at hand, to the Luxembourg tax authorities. According to the ECJ, this protection covers not only documents that fall within the scope of the "exercise of the rights of defense," but also legal consultations. Since the rulings of the ECJ are binding in France by virtue of the principle of the primacy of EU law over national law, the Court of Cassation may have to revise its position in the multiple areas where EU law applies in combination with national procedures. In addition, as the ECJ's decision is rooted not only in EU law but also in the European Convention on Human Rights, further alignment may also come from direct applications against France before the European Court of Human Rights in Strasbourg.
