COMPETITION • FRENCH LAW • PROCEDURE
Information that is of particular sensitivity for an undertaking, considered under the heading of business secrets (“secrets d’affaires”), must be distinguished from information that is confidential because of its source, considered under the heading of professional secrecy. This is the case of lawyer-client correspondence. It is, in fact, generally accepted that an individual should be able to freely consult his or her counsel. Case law establishes in principle that the act of consultation, prior to the launch of the investigation and the referral to the Competition Authority, is covered by professional secrecy (legal privilege) where it relates directly to the practices sanctioned.
Only client-lawyer correspondence or correspondence between lawyers are covered by legal privilege but not exchanges between a lawyer and a chartered accountant or documents directly addressed to the other party. Likewise, copying electronic exchanges between two persons to a lawyer is not sufficient to benefit from protection under confidentiality of attorney /client correspondence. However, an e-mail between two corporate counsel can benefit from legal privilege even if it did not emanate from and was not addressed to the undertaking’s lawyer when it reiterated a defense strategy put in place by the latter.
The seizure of documents covered by lawyer-client privilege is in itself sufficient to characterize a violation of the rights of the defense. It entails only a partial nullity however, which does not affect the other documents seized by the Administration.
Professional secrecy also covers the protection of journalistic sources. Nevertheless, an internet service provider, in its capacity as a communications undertaking, cannot, when it is subject to an investigation conducted pursuant to Article L. 450-4 of the Commercial Code, claim the procedural guarantees provided for in Article 56-2 of the Code of Criminal Procedure relating to searches of the premises of a press undertaking, as they do not apply to administrative investigations.
Similarly, the Paris Court of Appeal has ruled that searches carried out on the premises of the Conseil supérieur du notariat (High Council for the profession of notaries) do not infringe the professional secrecy of notaries, as long as the premises are not in themselves the location of a notarial activity.
Medical confidentiality is also protected. However, investigators may, without infringing that principle, seize documents, during the course of operations carried out on the premises of an order of dental surgeons, from which the president has himself previously removed the names of individuals contained in them.