French court upholds the right to contact a lawyer during dawn raids
On 10 April 2018, the Appellate Court in Paris annulled a decision to conduct a dawn raid against the French electrical retailer Darty back in 2013. When the French competition authorities initiated the search, Darty was denied access to contact its lawyer. The Appellate Court found that this amounted to a breach of Darty’s rights of defence.
Cour d'appel de Paris – judgment of 10 April 2018 – Darty
By assistant attorney Adrian Kielberg
In 2013, the French competition authorities conducted a number of dawn raids against manufacturers, distributors and dealers of electronic appliances, including Electrolux, LG, Samsung and Darty.
The dawn raids were triggered by suspected illegal price coordination activities. At the beginning of the dawn raids, both Samsung and Darty were denied access to communicate with external advisers, including lawyers, until the French competition authorities had sealed their premises. According to the authorities, these steps were necessary to improve the efficiency of the investigations and prevent removal or alteration of evidence.
Samsung then brought an action, claiming that the competition authorities had infringed its rights of defence by not allowing it to contact its lawyer. The French Supreme Court (Cour de Cassation), overruling the judgment of the Appellate Court in Paris (Cour d'appel de Paris), found for Samsung. Under French law, a party whose premises are being searched always has a right to contact its external advisers, including lawyers. The French Supreme Court found it irrelevant that Samsung had not suffered specific damage as a result of the infringement. In these circumstances, the French Supreme Court decided to annual the dawn raid and ordered the authorities to return the seized material.
As a result of the French Supreme Court’s finding in favour of Samsung, Darty decided to pursue a similar claim and succeeded before the Appellate Court in Paris. In line with the French Supreme Court’s decision in relation to Samsung, the Appellate Court in Paris annulled the dawn raid against Darty and ordered the authorities to return the seized documents and files. The Supreme Court also ordered the competition authorities not to use the relevant documents for the purpose of their future investigations.
Danish perspective
The case illustrates that companies being subjected to a dawn raid are allowed to seek legal assistance. Usually, the investigators will wait for the external lawyers to arrive, but they are not required to do so. The above cases show, however, that the right to communicate with one’s lawyer, also before he arrives, cannot be restricted.
Kromann Reumert’s assistance in connection with dawn raids
With “Kromann Reumert on call”, you will get immediate assistance from our specialists if a dawn raid operation is carried out against your business. The only thing you need to do is to choose the relevant investigating authority and then call us. We will then arrange for a specialist to show up and guide you through the inspection.
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