FRANCE Law and Practice Contributed by: Emmanuel Reille, Dimitri Dimitrov, Franck Audran, Laura Castex and Elizabeth Gautier, Gide Loyrette Nouel
6.2 Legal Professional Privilege According to the Law of 31 December 1971, the fol - lowing – in all matters, whether in the field of counsel or defence – are covered by professional secrecy: • written advice addressed by a lawyer (subject to that lawyer being outside counsel) to, or intended for, their client; • correspondence exchanged between the client and their lawyer; or • correspondence between the lawyer and their col - leagues (unless expressly identified as “official”). 6.3 Leniency and Settlement Agreements A judge cannot order the disclosure of “the written statement or the transcription of oral statements” by leniency applicants and undertakings involved in a settlement procedure before a competition author - ity (Article L483-5 of the FCC). The text extends this protection to “parts of a document drawn up in the course of the investigations and which would include a transcription or literal citation of these statements”. Third-party statements may be requested by a judge or the parties and provided in writing or orally (Articles 199 et seq of the FCPC). Judges can ask questions after the witness has submitted its statement (Article 213 of the FCPC). Cross-examination is not usually performed in French courts, except in the International Chamber of the Paris Court of Appeal, where the par - ties may be allowed to rely on various common-law procedural rules under the control of the judge. Summons to appear in front of a judge are mandatory. Defaulting witnesses who, without legitimate reason, refuse to testify or to take the oath may be fined a maximum of EUR10,000 (Article 207 of the FCPC). 7.2 Expert Witness Role and Procedure It is common practice for economic experts to be consulted to determine the existence and extent of possible damages suffered by the claimant or caused to the market. The parties can, of their own volition, submit expert reports. Furthermore, an expert report 7. Witness and Expert Opinions 7.1 Witness Procedure
the hearing of individuals, or the disclosure of evi - dence by third parties. In an interlocutory proceeding based on Article 145 of the FCPC, the Paris Court of Appeal initially ordered (inter alia) the production of the statement of objec - tions that the EC had addressed to Renault Trucks in connection with the trucks cartel, along with the list of documents supporting that statement. However, it refused to order the production of documents such as the list of gross prices and Renault Trucks’ costs and margins, as these requests were found disproportion - ate considering the damage they would cause to the defendant in its future negotiations with the applicant (Paris Court of Appeal, 25 October 2019, X Y v Renault Trucks, No 19/05356). This decision was then par - tially overturned by the French Supreme Court, which criticised the Paris Court of Appeal for not having examined whether the disclosure of the statement of objections was proportionate with regard to the con - fidential nature of the proof and the preservation of the effectiveness of competition law implemented in the public sphere (French Supreme Court, 8 July 2020, No 19-25.065). The Paris Court of Appeal, to which the case was subsequently referred, ultimately rejected the disclosure of the requested documents (Paris Court of Appeal, 18 May 2022, No 20/13878). More recently, still in the “trucks cartel case” and in proceedings based on Article 145 of the FCPC, the Paris Court of Appeal refused to order the disclosure of extracts from the confidential version of the EC’s cartel decision – given that the claimants did not jus - tify the usefulness of obtaining these documents for their assessment of their alleged damage. The court also refused to order the disclosure of the index of the EC’s file because such disclosure would undermine the leniency procedure. However, the court ordered the disclosure of the average sales prices of heavy trucks applied by the manufacturer in question in France and in each EU member state, as these aver - age prices would facilitate the assessment of the dam - age that the companies believe they have suffered as a result of the anti-competitive practices (Paris Court of Appeal, 20 April 2022, No 21/06313).
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