Competition dawn raids: the French Supreme Court maintains its restrictive approach to legal privilege

On 13 January 2026, the Criminal Chamber of the French Cour de cassation (Court of Cassation) delivered a further judgment concerning the scope of attorney-client privilege during dawn raids carried out by the French Competition Authority (“FCA”). The decision confirms, once again, the restrictive approach adopted by French courts towards legal privilege in competition investigations.

This ruling coincides with ongoing legislative debates on extending confidentiality protections to in-house counsel, raising fundamental questions about the balance between effective enforcement and the protection of defence rights.

Background

The case arose from dawn raids conducted in the dairy sector under Article L.450-4 of the Commercial Code which led to the seizure of various documents, including correspondence between companies and their external counsel.

At the heart of the dispute was the question of whether, and to what extent, communications between attorneys and their clients may be seized during competition inspections and under what conditions such documents must be returned.

The “exercise of rights of defense” test

In its 13 January 2026 judgment, the Court reaffirmed that documents are protected from seizure only if the following two cumulative conditions are met:

1. They are covered by outside counsel's professional secrecy; and
2. They relate to the exercise of the rights of defense (droit de la défense).

Only documents meeting both criteria are considered protected from seizure and the First President of the Court of Appeal may order restitution solely when these two conditions are satisfied.

As a result, correspondence with external counsel that does not directly relate to defence rights may be lawfully seized, even if it is confidential in nature.

The applicants first argued that this restrictive approach was incompatible with Articles 6 and 8 of the European Convention on Human Rights (ECHR) and was inconsistent with the position of the Commercial Chamber of the Cour de cassation.

In a very detailed reasoning, the Criminal Chamber rejected both arguments.

No contradiction with the Commercial Chamber’s position

First, it rejected the argument of the divergence with the Commercial Chamber’s position, considering that the Commercial Chamber’s cases concerned different factual and procedural contexts, notably tax matters.

One of the reasons relied upon to dismiss any inconsistency was that one of the Commercial Chamber’s decisions involved the use of documents obtained outside any judicial investigation in a tax matter and issues relating to waiver of privilege. 

This “contradiction” argument, which is often used by attorneys, has now been clearly rejected by the Cour de cassation.

Compatibility with human rights

Regarding the argument based on human rights, the Court stressed that although attorney-client confidentiality falls within the scope of Article 8 ECHR, it is not absolute. Relying on the European Court of Human Rights’ case law (notably Altay v. Turkey (No. 2), 9 April 2019), the Court found that limitations on privilege are permissible where they are provided by law, proportionate, foreseeable and pursue a legitimate aim.

Persistent uncertainty

Despite the Court’s detailed reasoning, it still fails to precisely define what constitutes the “exercise of rights of defence”. This ambiguity remains a significant weakness.

At a minimum, professional secrecy should cover communications with external counsel concerning the practices under investigation. In addition, communications unrelated to the investigated conduct should generally fall outside the investigation’s scope and should not be subject to seizure.

A more restrictive interpretation, under which only documents setting out a defence strategy in the specific proceedings would be protected by legal professional privilege, would effectively deprive that protection of any practical effect in the context of competition dawn raids. Since proceedings are in reality initiated by the inspections themselves, such documents would generally be created only after the seizure has taken place. As a result, none of the seized materials would benefit from privilege.

In any event, the absence of absolute protection means that investigators may need to conduct a quick review of documents in order to assess whether legal professional privilege applies. Under the “scellé provisoire” procedure, the content of the documents may therefore still be examined and debated at a later stage. The FCA takes the view that the mere seizure or consultation of privileged documents does not, in itself, invalidate the proceedings, provided that such documents are not ultimately relied upon (see Decision 24-D-09, §374).

This raises two additional concerns:

• The process is lengthy and resource-intensive for both authorities and companies.
• Sensitive legal advice may be read by investigators, even temporarily.

Ongoing legislative developments

On the day following this decision, the French Senate adopted a bill introducing confidentiality for in-house counsel’s legal consultations. This bill will now be examined by the Constitutional Court. 

While this represents a significant development for corporate compliance, its impact on competition investigations remains uncertain.

As early as 2023, the former Rapporteur Général of the FCA had publicly opposed extending such legal privilege to competition proceedings, arguing that it would weaken enforcement.

Even if statutory privilege for in-house lawyers is confirmed and applicable to the FCA’s investigation, it is likely that, in the context of dawn raids, protection will continue to be limited by the “exercise of rights of defence” test.

Conclusion

As the protection afforded by professional secrecy is not absolute, the seizure of communications with external legal counsel will often remain open to challenge.

As a result, heightened vigilance in legal communications and document management remains essential. In practice, companies should assume that pre-investigation legal advice, including advice provided by external counsel, may be seized - or at least examined - during dawn raids. Compliance programs and internal audit procedures should reflect this reality.

Clear internal protocols should be established to distinguish attorney-client communications, and in particular defense-related documents, from general compliance or advisory materials. Consistent labeling and structured document storage may help support privilege claims.

During inspections, legal teams must be prepared to assert privilege swiftly and in a well-documented manner, supported by clear factual and legal arguments.

Finally, multinational groups must consider significant divergences between national privilege regimes. French operations require particular attention in light of the particularly restrictive framework.

For further information or to discuss these issues, please contact Elsa Mandel Benichou and Thomas Oster.

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