On 26 November 2018, as part of this year`s OECD Roundtables, the European Commission presented an overview of its policy on the handling of protected information in competition proceedings. The European Commission`s guidance is useful because its best practices on solicitor-client privilege in antitrust proceedings date back to 2011 and there are no formal guidelines on merger proceedings (the Commission only occasionally refers to professional secrecy in its merger decisions, e.g. in the Dow/DuPont case). However, some aspects of legal privilege that have given rise to disputes between case teams and parties are not addressed in the document. In general, clients are well advised to use outside counsel in sensitive competition law cases at an early stage in order to preserve legal privilege and protect their rights. Most OECD jurisdictions protect the confidentiality of the relationship between a client and his or her lawyer and grant parties the right to object to the disclosure of proprietary information to public authorities and third parties in competition proceedings. Solicitor-client privilege is a logical consequence of the rights of the defence and personality. The amount and terms of the privilege vary from jurisdiction to jurisdiction, depending on the balance in each jurisdiction between the public interest in seeking evidence of competition law infringements and the right of parties to obtain and obtain effective legal advice and representation. www.oecd.org/daf/competition/treatment-of-legally-privileged-information-in-competition-proceedings.htm According to the interpretation of EC jurisprudence, solicitor-client privilege does not appear to extend to communications between one company and the external counsel of another company – nor to communications between external legal advisers of several companies.
However, this narrow interpretation could undermine the rights of the defence when external legal advisers have to exchange advice, for example in the context of the joint assessment of efficiencies in cases falling under Article 101(3) TFEU. In practice, constellations requiring the exchange of information between external consultants to ensure the best possible defence are also dealt with under joint defence agreements. The European Commission (“EC”) recently published a working document on the treatment of protected information in competition proceedings. This 2018 Staff Working Document summarises the European Commission`s current practice on professional secrecy. In November 2018, the OECD held a discussion on the treatment of inside information in competitive proceedings. All related documents for the discussion are available on this page. The Court of Justice of the European Union (“CJEU”) defined its principles of privilege in its AM&S v. Commission and its more recent decision Akzo v. 2010 Commission. In particular, the CJEU ruled in the Akzo judgment that professional secrecy extends to communications from independent lawyers for the purposes of the client`s rights of defence in competition law investigations. In addition, it confirmed that communications to and from in-house lawyers registered in the context of an EC investigation do not enjoy privileges. Essentially, it is argued that privilege is granted only to independent lawyers.
Since salaried in-house lawyers do not enjoy the same degree of independence as an external lawyer, their counsel does not enjoy a privilege. The European Commission`s working document confirms that documents obtained in the course of an exchange of information with a national competition authority can be used as evidence by the EC and vice versa, regardless of the extent of the legal privilege in the investigation in question. While this approach may have efficiencies for the EC, it is clear that it risks undermining and possibly even reducing the standards of privilege in member States, which could provide greater protection, through exchange of information, if national law considered such involuntary disclosure of information by the parties to be a waiver. Although the case law cited above concerns only cartel cases, the Commission now explicitly states in its working document that the principles should also apply to merger control proceedings. This very important clarification is particularly relevant in the context of the European Commission`s requests for information to merged companies in the context of complex merger investigations. In order to further clarify this specific situation, the Commission is currently preparing “best practices for requests for internal documents under the EU Merger Regulation”. Different approaches to solicitor-client privilege in legal systems create challenges in terms of companies` international activities and cooperation and exchange of information between authorities in cross-border cases where jurisdictions offer different levels of protection. » See the full list of OECD roundtables on best practices in competition policy The 2021 Future Ready Lawyer survey found that 78% of law firms recognise the impact of transformative technologies. Kluwer Competition Law is a superior feature with a wealth of exclusive content. The tool allows you to make more informed decisions, faster from any preferred location. As a competition lawyer, are you ready for the future? Find out how Kluwer Competition Law can help you.
Although the EC generally excludes solicitor-client privilege for communication with other professional advisers such as accountants or economists, it mentions that relevant communication with patent agents could benefit from legal privilege if the company concerned proves that the communication is related to the assessment of future competition disputes. Further, the Commission clarifies that the privilege applies only to certain information and not to a document itself. In other words, if a document contains inside and non-inside information, the EC can access and use the non-inside information. In accordance with the relevant case law, the Commission confirmed that professional secrecy extends to documents created before the initiation of investigations, provided that they are related to the subject matter of the investigation. Similarly, internal documents that summarize the content of a privileged communication enjoy privilege. However, the EC has not clarified the limits, i.e. the cases in which internal aggregation and transmission could effectively undermine the protection of privileges. » Detailed summary of the discussion • Detailed report of the discussion » Watch a video on the other topics that will be discussed in November 2018 Save my name, email address and website in this browser for the next comment. The OECD briefing note as well as contributions from other countries (including Member States) are available here: one.oecd.org/document/DAF/COMP/WP3/WD(2018)46/en/pdf To ensure you don`t miss any regular updates from the Kluwer Competition Law blog, please subscribe here. Renato NAZZINI Bio Professor of Law and Director of Research in Construction Law, King`s College London Your email address will not be published.
Required fields are marked * Francisco Enrique GONZALEZ-DIAZ BioPartner, Cleary Gottlieb Steen & Hamilton The European Commission`s note largely refers to the settled case law of the General Court of the EU. However, it is worth mentioning: » OECD Background Note • OECD Reference Note Any questions? Please contact: Stefan Bauer, Dr. Fabian Hübener » Summary with main findings • Summary of key points of discussion Wouter WILS BioHearing Officer at the European Commission and visiting professor at King`s College London, presenting solicitor-client privilege in antitrust enforcement in the EU.
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