COMPETITION • FRENCH LAW • PROCEDURE
As in European law, undertakings may be assisted by counsel at various stages of the procedure.
In the context of a court-ordered investigation, Article L. 450-4, paragraph 5 of the Commercial Code provides for the possibility of indicating the right to be assisted by counsel in the authorization order. It is sufficient that this reference be included in the order: the investigators are not required to verbally remind the parties of this option. This does not entail the suspension of the visit and seizure operations in the absence of counsel. On the other hand, the investigators cannot refuse to allow the undertaking to be assisted by a lawyer. Such a refusal constitutes a violation of the rights of the defense enshrined by the Court of Justice: the search and seizure operations must be annulled if the agents of the Administration have prevented lawyers from assisting the undertakings inspected. The lawyer may, like the representatives of the undertaking, take cognizance of the exhibits and documents before they are seized. The presence of counsel is generally useful for safeguarding attorney/client privilege and for the full exercise by the lawyer of the general mission of assistance entrusted to him/her by law. On the other hand, the purpose of the presence of counsel cannot be to approve the seizures made.
When the rapporteur summons the parties to the hearing after the Statement of Objections, he must inform them of the possibility of the assistance of counsel.
Finally, when appealing to the Paris Court of Appeal, the parties have the option, but not the obligation, of being assisted by a lawyer attached to the Court of Appeal: they may also defend themselves.
