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Legal professional privilege under EU law: current issues

Francisco Enrique González-Díaz, Paul Stuart, Competition Law & Policy Debate, Volume 3, Issue 3, September 2017

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European and non-European companies operating in Europe benefit from a number of fundamental rights including those provided for in the Charter of Fundamental Rights of the European Union (the “Charter”). One of these rights, as recognized on numerous occasions by the European courts, is the right to legal professional privilege (“LPP”). LPP stems from both the right to be “advised, defended and represented” and the right of defence ex Articles 47 and 48 of the Charter respectively. However, the scope of this right, as interpreted by the European Court of Justice, the European Commission (hereinafter the “EC”) and National Competition Authorities (hereinafter NCAs), has at times been controversial.

On a narrow interpretation of the jurisprudence concerning LPP, only certain categories of documents would be protected from disclosure during antitrust proceedings, namely: (1) written communications between a client and an “independent lawyer” entitled to practise his or her profession in one of the Member Stateswhen such communications are connected to the client’s rights of defence; (2) internal notes that are confined to reporting the text or the content of those communications; and (3) preparatory documents drawn up exclusively for the purpose of seeking legal advice from a lawyer in exercise of the rights of the defence.

The corollary of this narrow reading of the case law would be that the following documents would, allegedly, not to be covered by LPP under EU law and could therefore be inspected and used by the European Commission and/or NCAs:
(1) legal advice rendered by non-EU qualified counsel, regardless of the rules governing those communications in the jurisdiction in which they are made; (2) requests for legal advice made by a business person to their in-house lawyer, even where the in-house lawyer elects to convey that request for legal advice directly to outside counsel, in circumstances where the same request for legal advice, if made directly to the outside counsel, would undoubtedly be covered by LPP; and (3) legal advice provided by an in-house lawyer without the input of an external counsel. As submitted in this contribution, properly assessed, including by reference to the principles of international law that govern the EC in the exercise of its powers, at a minimum, the first two of these categories of documents and arguably the third can and should be protected by LPP under EU law, consistent with the case law on which the EC relies.

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