On June 26, 2014, the criminal chamber of the French Supreme Court (Cour de Cassation) held that during antitrust procedures, the defendants' rights of defense must be respected during the entire procedure, including during the preliminary inquiry and especially dawn raids. Cour de Cassation, 26 June 2014, n° 25.06.2014.

In this case, the date of the investigation is of crucial importance. The challenged dawn raid was held on March 18, 2008. At that time, the attendance of external lawyers during dawn raids was not provided for by French law, and their presence was thus not a right. In the interim, article L. 450-4 of the French code of commerce (which provides for the French dawn raid proceedings) was modified by an order on Nov. 13, 2008. The new rules provide that parties may be assisted by the counsel of their choice during antitrust investigations.

The Court of Appeal refused to annul the investigation on the basis that the lawyers were refused access to the investigated premises. Indeed, the Court considered that the presence of a lawyer must be provided for explicitly by the law and that the parties were not subject to any measure of constraint, therefore not benefiting from the protection granted by Article 6 of the European Convention on Human Rights (ECHR).

The Cour de Cassation reversed the decision of the Court of Appeal, and annulled the dawn raid that was carried out. The Court considered that even though the law was silent regarding the presence of lawyers during investigations, EU and ECHR case law regarding the rights of defense and a fair trial command that the presence of legal counsel must be possible during competition dawn raids.

Therefore, the Court recognized the right to be assisted by a lawyer during preliminary investigations conducted by a competition authority even when such right is not expressly provided for by the law in force.

The court's decision can be found here.

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