Cour de cassation, 24 September, 2024, no. 23-82.230

On September 24^th, 2024, the Criminal Chamber of the French Supreme Court (the “Cour de cassation”) issued a noteworthy decision concerning the handling and admissibility of evidence collected in the context of dawn raids.

In this case, the French Competition Authority (FCA) conducted dawn raids authorized by a judge under Article L.450-4 of the French Commercial Code. During these operations, the FCA faced technical challenges with copying certain electronic mailboxes and subsequently requested the company to provide these documents within a specified timeframe after the raids.

The company complied but later contested this request before the Paris Court of Appeal, arguing that the handover occurred outside any legal framework, rendering it unlawful.

On April 5^th, 2023, the Court of appeal annulled the document handover, ordering their return to the company and prohibiting their use by the FCA.

The Court ruled that the post-raid document handover was not supported by Article L.450-4, as it does not specifically authorize requesting the communication of documents not seized during the raids. 

The ruling was based on paragraph 12 of Article L.450-4 which grants the First President of the Court of appeal the authority to assess the legality of how dawn raid operations were conducted. 

The French Competition Authority (FCA) appealed this decision to the Supreme Court, which ultimately overturned the Court of Appeal’s ruling.

To reach this conclusion, the Supreme Court relied on an argument raised of its own motion, i.e. that the First President of the Court of appeal lacked jurisdiction to rule over the voluntary handing over of documents. The Supreme Court indeed considered that the voluntary submission of items after the end of authorized dawn raid operations did not fall within the scope of Article L.450-4, even if the commitment to hand over such items was recorded in the raid minutes.

This ruling raises significant concerns about legal certainty, especially since the Supreme Court did not address the legal framework for such document seizures, leaving open the question whether these actions fall under “heavy” investigations (Article L.450-4) or “simple” investigations (Article L.450-3).

The issue is further complicated by the fact that the request for document handover was made during the dawn raid and subject to a specific deadline, suggesting that the FCA was exercising its coercive powers. Additionally, the company was not given the opportunity to sort through the documents to exclude those protected by professional secrecy, and these documents did not receive the same level of protection as those seized during the raids.

Given this uncertainty, one can hope that such requests for post-raid document handovers will remain rare. Some French legal experts even suggest that suspending the dawn raid until the next day could be a better approach[1]. Furthermore, to ensure fairness, companies should be clearly informed that the handover of documents would occur outside the scope of the dawn raids and would not receive the same protection. The company’s choice should be documented in the raid minutes.

On the same day, the Supreme Court also reaffirmed that only those client-attorney communications that are related to defense rights are protected from seizure. While, this is not an entirely new stance (see for instance Decision of the Supreme Court of November 25^th 2020 or Decision of January 21st 2021) and beyond the legal uncertainty linked to the notion of “defense rights”, the maintenance of this strict position must necessarily call for increased vigilance on the part of companies.
 

If you need more information or further guidance in this area, please contact Thomas Oster and Elsa Mandel.

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[1] Article by André Marie, former deputy director and head of the competition policy office at the DGCCRF