Legal Professional Privilege Under the EU Merger Regulation: State of Play

The proliferation of multi-jurisdictional antitrust merger control investigations has brought into sharp focus the interpretation of the existing EU legal professional privilege (“LPP”) rules set out in the landmark Akzo, AM&S and Hilti cases. In this article, we will describe how a strict interpretation of the current rules on LPP falls short in addressing the complexities of global merger control cases and in ensuring the protection of companies’ rights of defence. We will also point to some potentially useful approaches to limit the unwanted waiver of US LPP on documents to be submitted to the European Commission (“EC”).