I want my lawyer! French Supreme Court invalidates raids to ensure access to lawyers

On 17 and 18 October 2013, the FCA conducted dawn raids at the premises of Samsung, pursuant to an Order of 9 October 2013. On arrival at the company's premises, the FCA prohibited Samsung from communicating with any external persons until after the FCA had sealed relevant parts of Samsung's premises.  This therefore prevented Samsung from contacting its external lawyers. 

According to the FCA, such a prohibition was necessary to ensure the efficiency of its investigation and to avoid any loss of evidence.

However, Samsung submitted that this measure violated its rights to defence, Article L. 450-4 of the French commercial code expressly provides that persons subject to an investigation must be provided with to opportunity to request the assistance of a lawyer.  Samsung submitted that waiting until after the FCA had sealed relevant parts of Samsung's premises was too late.

On 6 January 2016, the French Court of Appeal dismissed Samsung's appeal.  It held that the FCA's decision, whilst technically is not compliant with Article L 450-4, did not cause Samsung any grievance.

However, in its judgment of 4 May 2017, the French Supreme Court annulled the Order on the ground that Samsung's rights of defence had been violated. In the Court's opinion, the fact that Samsung has not suffered any grievance was irrelevant.  The FCA should have authorised Samsung to be permitted to contact its lawyers from the very outset of the raid.

This judgment illustrates that the right to request legal assistance in the context of a FCA raid is absolute and that that right cannot be withheld, even for a short period.

With thanks to Julie Tirtiaux of Ashurst for her contribution.