On 22 January 2008, the French Competition Authority (the "FCA") conducted an inspection, authorised by a judicial order, at the premises of Europcar in order to find evidence supporting alleged competition law breaches.

Europcar challenged the inspection and the seizure of evidence before the Paris Court of Appeal by arguing that the FCA had denied the company’s external counsel the right to take part in the proceedings, in breach of Law n°71-1130 of 1971 (Article 6) which provides that lawyers may assist and represent their clients before public administrations, subject to legislative and regulatory provisions.

In fact, in this particular case, the FCA had explicitly informed Europcar prior to the inspection that, should the company be represented by its lawyers, they would not be authorised to attend the inspections and seizure operations. Once the company’s lawyers arrived on the premises, they were instructed by the FCA inspectors to stay silent and not to enter the company’s offices where the inspections and seizures were carried out.

On 31 August 2008, the Paris Court of Appeal rejected the claims that the company’s rights had been violated. The Court of Appeal held that the provisions of Article L.450-4 of the French Commercial Code did not explicitly allow for the assistance of external counsel, but, rather, provided only that the visits shall be carried out in the presence of the occupant of the premises or his “representative”1/. The Court also indicated that, regardless of what the word “representative” encompasses, the rights of the defence were preserved by (i) the oversight by the judge in charge of issuing the order authorising the raid, (ii) the presence of law enforcement officers during the operations, and (iii) the possibility to bring claims before the Court of Appeal.

On 27 November 2013, the French Supreme Court reversed the 31 August 2008 order of the Paris Court of Appeal on the grounds that the Court of Appeal did not effectively examine whether the deprivation of legal assistance had hindered the exercise of the company’s rights of defence during the inspections. The Supreme Court held that the defence rights of an entity under investigation apply as from the preliminary investigation onwards, without the need for an express legal provision to that effect. The Supreme Court justified its stance by referring explicitly to EU case law imposing a right to legal counsel from the preliminary investigation stage of the competition proceedings (CJCE 17 oct. 1989, Dow Chemical Ibérica, aff. 97, 98 et 99/87).

The French Supreme Court asserts that not only should the lawyers be entitled to access the premises during an FCA inspection, they should also be able to speak and to look at the documents which are about to be seized.

This decision is a welcome break from the decisions of earlier case law. The French Supreme Court had in fact recently ruled, albeit in a case involving terrorism, that the absence of the defendant’s counsel during a police search at his home did not affect the right to a fair trial (Crim. 22 oct. 2013, n° 13-81.945). Likewise, the Supreme Court had found, in a tax fraud case, that the presence of a defendant’s counsel during a police search at his home was not imperative when such person was neither interrogated nor held in custody (Crim, 3 avr. 2013, n°12-88428).

Crim. 27 nov. 2013, n°12-86.424 (Société Europcar France).