France: A Competition/European Law Overview
French and EU competition law are currently shaped by three main dynamics: the emergence of a specific confidentiality regime for in-house counsel, deep tensions around attorney-client privilege in investigations, and a dual movement in merger control.
Confidentiality of In-House Legal Advice
After more than 30 years of debate, France has adopted a law recognising the confidentiality of certain legal consultations issued by in-house counsel, validated by the Constitutional Council in 2026. The Council links this protection to an objective of general interest: enabling corporate bodies to obtain internal legal advice that facilitates compliance with applicable rules. It recognises in-house lawyers as the “guardians of compliance and respect for the law within companies”, whose legal opinions must not be used to incriminate the company.
The regime is deliberately narrow. Confidentiality is limited to specific legal consultations and fraudulent use of the confidentiality label is criminally sanctioned. Protected consultations must meet formal requirements, contain an opinion or advice based on the application of a rule of law, and be drafted by in-house lawyers meeting strict qualification and ethics-training conditions. In principle, and subject to EU powers, such consultations cannot be seized or required to be produced to third parties, including French or foreign administrative authorities, in judicial proceedings.
The protection is not absolute. The law creates no immunity in criminal matters, does not alter companies’ legal obligations and does not prevent authorities from accessing other documents revealing infringements. Confidentiality is not opposable in criminal and tax matters and may be lifted, under conditions, by a judge in other procedures. In administrative proceedings, the Council requires a control mechanism allowing an authority that considers confidentiality wrongly invoked to refer the matter to the juge des libertés et de la détention (a French magistrate responsible for protecting individual liberties), both in the context of dawn raids and when exercising its right of communication. In civil and commercial proceedings, confidentiality may also be lifted where the consultation facilitates or incites an infringement.
For companies, this framework requires internal protocols to identify qualifying consultations, train in-house teams, and manage interactions with regulators so that compliance alerts do not automatically become evidence of infringement.
Attorney-Client Privilege
In parallel with the above developments, the scope of attorney-client privilege in France is marked by a sharp divergence between the Criminal Chamber of the Cour de cassation and both European standards and the Commercial Chamber.
The Criminal Chamber limits privilege to exchanges relating to the exercise of the rights of the defence, understood narrowly and excluded where documents are not connected to judicial or sanction proceedings. In practice, this reduces privilege to a “minimal portion” of competition and economic practice, as most work is advisory and compliance-oriented. A legal opinion warning a company of commercial, financial, civil or criminal risk and recommending a change of conduct may be seized and used as evidence. Even correspondence exchanged for the defence after proceedings have been opened is only partially protected: while it cannot directly serve as evidence of an infringement, it may be read during dawn raids or when sorting protected correspondence and used to guide investigations. Commentators consider that this case law, combined with French Competition Authority (FCA) practice, leads to a “complete negation” of attorney-client privilege.
This approach is difficult to reconcile with EU and European Convention on Human Rights (ECHR) standards. In 2024, the ECJ held that Article 7 of the Charter of Fundamental Rights of the European Union necessarily guarantees the confidentiality of legal consultations, whatever the field, as to both their existence and content. The Court also linked this protection to Article 8(1) of the ECHR, and the European Court of Human Rights (ECtHR) has confirmed that the confidentiality of all lawyer-client correspondence, including advisory work, is protected. Under Article 52 of the Charter and ECtHR case law, any limitation must be provided by law, respect the essence of the right, comply with proportionality and be necessary in the general interest. According to French commentators, the Criminal Chamber’s case law does not meet these cumulative conditions, because no French statute restricts privileged correspondence to exchanges for the exercise of defence rights.
By contrast, the Commercial Chamber reaffirmed in 2025 the unity and generality of attorney-client privilege, “both in defence and advisory matters”. This position contradicts the Criminal Chamber’s limitation and highlights the untenable nature of the latter’s stance.
For competition investigations, the conflict is acute. The FCA conducts dawn raids under the Criminal Chamber’s case law, sometimes adopting an even more severe position by restricting confidentiality to the exercise of defence rights in competition matters. This practice is criticised as incompatible with the EU/ECHR requirement that persons consulting a lawyer must be able to expect their communications, whether for litigation or general legal advice, to remain private and confidential.
At EU level, the Commission’s 2025 Competition Policy Brief has added to the controversy. It presents an ultra-restrictive view of privilege, limited to written communications with independent EU-qualified lawyers for the sole purpose of defence, internal reports of such communications and preparatory documents created exclusively to seek such advice, relying on old case law. This excludes almost all advisory work, which constitutes the bulk of competition practice. It also conflates attorney-client privilege with in-house confidentiality, whereas these are distinct notions.
For businesses, the result is a fragmented and uncertain privilege landscape. They must assume that advisory communications with external counsel may still be seized and read in French competition dawn raids, even though European case law and the Commercial Chamber point towards broader, unified protection.
Merger Control
On the merger side, France is moving towards a lighter ex ante regime for standard transactions, while continuing to explore a targeted tool to capture “killer acquisitions”.
The Law of 26 May 2026 on the simplification of economic life increases the French merger control thresholds laid down in Article L. 430-2 of the Commercial Code. The relevant provision will enter into force on 1 September 2026. For ordinary concentrations, the combined worldwide turnover threshold will rise from EUR150 million to EUR250 million, and the French turnover threshold for at least two parties from EUR50 million to EUR80 million. In retail, the worldwide threshold will increase from EUR75 million to EUR100 million, and the French retail turnover threshold for at least two parties from EUR15 million to EUR20 million. Thresholds for operations in French overseas departments and territories remain unchanged.
The threshold increase was not accompanied in the new law by a dedicated mechanism allowing the FCA to call in or require notification of below-threshold transactions. In the Court of Justice’s Illumina/Grail judgment of 2024, the Court held that Article 22 of the EU Merger Regulation cannot be used to refer transactions to the Commission that fall outside both EU thresholds and the referring national authority’s own jurisdiction.
The FCA opened a public consultation in early 2025 on the possible introduction of a national tool for reviewing below-threshold transactions liable to harm competition in France. Two options are under discussion: a targeted call-in power for the FCA, limited in time and subject to dual criteria, and a mandatory notification criterion for companies with a certain level of pre-identified market power, based on previous FCA decisions. In 2025, the FCA indicated that the second option had attracted significant criticism, while the targeted call-in model was generally better received.