Legal privilege

Procedures

Legal professional privilege: An overview of EU and national case law
Van Bael & Bellis (Brussels)
Since 1982, the year in which the Court of Justice recognized the existence of a legal professional privilege in EU law in its AM & S judgment, this issue has been a source of debate as well as frustration within legal and business circles in the EU in view of the limitations to the scope (...)

The Brazilian Superior Court of Justice limits the confidentiality of the Competition Authority’s leniency agreements (Εlectrolux)
Mattos Filho Veiga Filho Marrey Jr & Quiroga (New York)
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Mattos Filho, Veiga Filho, Marrey Jr. & Quiroga (Sao Paulo)
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Mattos Filho, Veiga Filho, Marrey Jr. & Quiroga (Brasilia)
The Brazilian Superior Court of Justice (“STJ”) has issued a ruling that seeks to limit the confidentiality of leniency agreements entered into with the Brazilian antitrust authority (“CADE”). Pursuant to the ruling, third parties may have access to such agreements and related materials (including (...)

A Canadian Court holds that information received by the Competition Bureau at the proffer stage of its immunity and leniency programs is not protected from disclosure to other accused persons by settlement privilege (R / Nestlé Canada)
Lighthouse Global
Proffers to Competition Bureau must be disclosed to accused, court says* Information received by the Competition Bureau at the proffer stage of its Immunity and Leniency Programs is not protected from disclosure to other accused persons by settlement privilege, the Ontario Superior Court of (...)

A Canadian Court clarifies Competition Bureau disclosure obligations in cartel prosecutions (R / Nestlé Canada)
Davies Ward Phillips & Vineberg (Toronto)
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Davies Ward Phillips & Vineberg (Toronto)
Canadian Court Clarifies Competition Bureau Disclosure Obligations in Cartel Prosecutions* On February 4, 2015, the Ontario Superior Court of Justice ruled that relevant factual information proffered to the Crown in order to qualify for immunity or leniency under the Competition Bureau’s cartel (...)

The Court of Justice revolves around the radius of Commission’s powers and discretion in establishing an infringement of article 106 TFEU read together with article 102 TFEU (Greek Lignite Case)
Prentoulis Gerakini Law Partnership (Athens)
On 17 July 2014 the Court of Justice of the EU (‘CJEU’) rendered its decision in the Greek Lignite case, which revolves around the radius of Commission’s powers and discretion in establishing an infringement of article 106 TFEU read together with article 102 TFEU. Article 106 is the legal vehicle (...)

The Finnish Parliament approves the new Competition Act introducing amendments to both merger and antitrust rules
European Commission
Finland: New Competition Act approved by the Parliament* On 11 March 2011, the Finnish Parliament approved the new Finnish Competition Act. The Act will enter into force in autumn 2011. The main amendments are the following. One of the major changes brought by the new law relates to the (...)

The Austrian Supreme Court rules on the requirements for granting the Federal Cartel Authority a search warrant to enter the premises of an attorney suspected of possessing relevant document in a cartel case (Fire Trucks II)
Salzburg University
1. Background This case follows on from the proceedings 16 Ok 7/09 in which the Federal Cartel Authority (Bundeskarellamt) investigated four undertakings for participating in collusive practices pursuant to Art 101 TFEU by dividing up their market share. The four undertakings had consulted (...)

The English High Court rules that notes of witness interviews prepared by in-house and external counsel in the course of an internal investigation were not covered by legal advice privilege or lawyers’ working papers privilege (RBS Rights Issue Litigation)
Shearman & Sterling (London)
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Shearman & Sterling (London)
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Shearman & Sterling (London)
In December 2016, the English High Court ruled that transcripts, notes and other records of witness interviews prepared by in-house and external counsel in the course of an internal investigation were not covered by either legal advice privilege (“LAP”) or lawyers’ working papers privilege. The (...)

A US District Judge holds that an antitrust compliance policy can fall outside of attorney-client privilege (Domestic Drywall)
Siemens (New York)
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Patterson Belknap Webb & Tyler
Are Antitrust Compliance Programs Protected by Attorney-Client Privilege?* We’ve previously written about the components of effective antitrust compliance programs and the potential benefits corporations may achieve by adopting them. (Read some of our posts here and here.) In drafting (...)

The Irish Competition Authority and National Consumer Agency welcomes the publication of the Competition and Consumer Protection Bill which will merge the two organisations to form the Competition and Consumer Protection Commission
Irish Competition Authority
Competition Authority and National Consumer Agency welcome publication of the Competition and Consumer Protection Bill* The Competition Authority and National Consumer Agency today welcomed the publication of the Competition and Consumer Protection Bill which will merge the two organisations (...)

The German Federal Court of Justice recognizes that information which became known to lawyers in the process of acquiring new clients may be subject to the right to refuse testimony
Commeo
In its decision of 18 February 2014, the Federal Court of Justice (the “Court”) considered the right to refuse testimony to apply to any information which became known to a lawyer in the course of two telephone calls he made for the purpose of the acquisition of a new client. As a consequence, (...)

The German Federal Court of Justice recognizes that information which became known to lawyers in the process of acquiring new clients may be subject to the right to refuse testimony
Commeo
In its decision of 18 February 2014, the Federal Court of Justice (the “Court”) considered the right to refuse testimony to apply to any information which became known to a lawyer in the course of two telephone calls he made for the purpose of the acquisition of a new client. As a consequence, (...)

The EU Parliament presents a report comprising amendments to the Commission’s legislative proposal concerning the regime of actions for damages prompted by infringements of competition law
Mircea & Partners (Bucharest)
Introduction In the beginning of the process of decentralization of the enforcement of competition law in the EU the necessity to encourage the development of private enforcement appeared to be more of a theoretical proposition than a tangible reality. Ten years after the adoption of the (...)

The French Supreme Court rules that globally seizing electronic mailboxes is limited by the principle of legal professional privilege (Medtronic)
Van Bael & Bellis (Brussels)
On 24 April 2013, the French Supreme Court ruled that the powers of inspectors to globally seize electronic mailboxes are limited by the rights of the defence and, more specifically, the legal professional privilege (“LPP”). As a result, in 6 separate judgments, the French Supreme Court (...)

The Dutch Supreme Court confirms legal privilege for in-house lawyers
Van Bael & Bellis (Brussels)
On 15 March 2013, the Dutch Supreme Court (Hoge Raad der Nederlanden) confirmed the existence of a general legal privilege for in- house lawyers. The Supreme Court considered that the Akzo case law of the European Court of Justice (ECJ) is not applicable beyond EU competition law and (...)

The Brussels Court of Appeal holds that communications between a company and its in-house counsel are entitled to the protection of the attorney-client privilege under Belgian law, and therefore are not subject to production to the Belgian Competition Authority (Belgacom)
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Axinn Veltrop & Harkrider (New York)
The Brussels Court of Appeal held that communications between a company (Belgacom Group) and its in-house counsel were entitled to the protection of the attorney-client privilege under Belgian law, and therefore were not subject to production to the Belgian Competition Authority (“BCA”), which (...)

The Brussels Court of Appeal recognises legal professional privilege to in-house lawyers (Belgacom)
Van Bael & Bellis
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Van Bael & Bellis (Brussels)
On 5 March 2013, the Brussels Court of Appeal delivered a landmark judgment finding that in-house lawyers’ communications benefit from the so-called “legal professional privilege”, i.e. they are protected by the confidentiality of communications between lawyers and their clients. The Court’s (...)

The Bucharest Court of Appeal confirms the restrictive interpretation of the legal professional privilege in the Romanian competition law
Mircea & Partners (Bucharest)
Romania is among the last countries in the European Union to have introduced the concept of the Legal Professional Privilege (“LLP”) in its national legislation. This took place in 2010 when the Romanian Competition Law (RCL) has been amended to a great extent and the relevant provision has been (...)

A German Regional Court approves seizure by Federal Cartel Office of audit documents prepared by external counsel
Van Bael & Bellis (Brussels)
By decision of 21 June 2012, the Regional Court of Bonn (“the Court”) upheld a decision by the Local Court of Bonn approving the seizure by the German Federal Cartel Office (“FCO”) of internal audit documents that had been prepared by external counsel at the premises of the appellant. The (...)

The Spanish Supreme Court validates the seizure of documents protected by legal privilege and documents beyond the scope of the inspection order, if they are not used in the administrative proceedings (STAMPA)
Lonza
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Cuatrecasas, Goncalves Pereira (Barcelone)
On April 27, 2012, the Spanish Supreme Court issued judgment number 6552/2009 on the appeals submitted by the Asociación Nacional de Perfumería y Cosmética (“STANPA”) and the Spanish Competition Authority (“CNC”) against the judgment of the Audiencia Nacional (Spanish Court of Appeal, “AN”) of (...)

The UK Competition Appeal Tribunal clarifies scope of litigation privilege in Office of Fair Trading investigations (Tesco)
Morgan Lewis (London)
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Jones Day (London)
The UK Competition Appeal Tribunal ("CAT") has ruled that litigation privilege attaches to documents of parties being investigated, even when created before the Office of Fair Trading ("OFT") takes a formal infringement decision. The CAT confirmed that, once the OFT has issued a Statement of (...)

The EU Competition Commissioner Almunia proposes changes to the Commission’s procedural practice in antitrust investigations
Van Bael & Bellis (Brussels)
On 30 May 2011, Competition Commissioner Joaquín Almunia announced a number of modifications he intends to introduce to the procedural rules governing antitrust proceedings before the Commission. The contemplated modifications concern DG Competition’s procedural Best Practices and the revision of (...)

The European Court of Justice holds that in-house lawyers are not protected by legal professional privilege in antitrust investigations (Akzo)
Skadden, Arps, Slate, Meagher & Flom (Brussels)
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Dentons (Brussels)
On September 14, 2010, the Court of Justice (the Court) issued its judgment in Akzo v. Commission (Case C-550/07 P, hereinafter the Judgment) dismissing an appeal brought by Akzo Nobel Chemicals Ltd. (Akzo) against a judgment of the Court of First instance (now the General Court) of September (...)

The EU Court of Justice confirms that legal professional privilege under EU law does not extend to communications with in-house lawyers (AKZO)
Linklaters (London)
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A&L Goodbody (Dublin)
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Linklaters (Brussels)
Background In February 2003, the Commission, with the assistance of the UK’s Office of Fair Trading, conducted a dawn raid at the UK premises of Akzo Nobel and Akcros Chemicals on suspicion of possible anti-competitive practices. During the raid, a dispute arose between the investigation team (...)

The EU Court of Justice confirms that communications with an in-house lawyer are not legally privileged (AKZO)
Stibbe (Amsterdam)
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Outer Temple Chambers
1. Following approximately seven years of extended litigation, discussed in previous issues of Concurrences the last phase of the Akzo litigation relating to the personal scope of legal professional privilege («LPP») has finally come to an end with the European Court of Justice’s («ECJ») seminal (...)

The European Commission rejects legal privilege protection for correspondence between outside counsel of opposing companies (Servier, Teva)
Van Bael & Bellis (Brussels)
The European Commission has recently published the non-confidential version of a decision adopted on 23 July 2010 regarding a claim by a pharmaceutical company, Les Laboratoires Servier, and its parent company Servier SAS (“Servier”), that a document seized during an unannounced inspection in (...)

The Romanian Government enacts an ordinance radically overhauling competition legislation (Emergency Government Ordinance 75/2010)
Mircea & Partners (Bucharest)
The context 7 years since the Romanian Competition Law (Law 21/1996, hereinafter referred to as “RCL”) has been amended and 3 years after Romania joined the European Union, new competition regulation came into force, as a result of the enactment of the Emergency Government Ordinance 75/2010 (...)

The Romanian Competition Council brings national competition Law in line with European Union competition rules (Emergency Government Ordinance 75/2010)
Musat & Asociatii (Bucharest)
On July 06, 2010 Emergency Government Ordinance 75/2010 (“EGO 75”), amending the provisions of the Competition Law 21/1996 (the “Competition Law”), has been published in the Official Gazette. EGO 75 will enter into force on 05 August 2010. EGO 75 is the result of a relatively long process during (...)

The ECJ Advocate General Kokott advises against the extension of legal professional privilege to in-house lawyers (Akzo Nobel)
Van Bael & Bellis (Brussels)
On 29 April 2010, Advocate General Juliane Kokott handed down her opinion in an appeal before the Court of Justice by Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd. The appeal had been brought against a judgment of the Court of First Instance (now the General Court) of 17 September 2007 in (...)

The Austrian Supreme Court confirms the legality of a request for a search warrant regarding the premises of a law firm suspected of having provided support to a cartel on the market of fire service equipment (Hausdurchsuchung Feuerwehrausrüster Rosenbauer)
European Court of Justice (Luxembourg)
1. Introduction By order of 19 April 2010 in Case 16 Ok 2/10, the Austrian Supreme Court (acting as the highest appellate court in competition matters; Oberster Gerichtshof als Rekursgericht in Kartellrechtssachen) annulled the first instance decision of the Vienna Cartel Court (...)

The Hungarian Supreme Court defines the extent of client-attorney privilege in competition proceedings (BH 2009.364)
Oppenheim
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Oppenheim - Budapest
In December 2009 the Supreme Court published a significant individual decision (under No. BH 2009.364), in which it confirmed that communication between client and attorney, even if occurred before the initiation of the respective competition proceedings by the HCO, may still be subject to (...)

The Spanish National Court finds that the ANC has exceeded its powers in taking copies of company employees hard drives and therefore breached the principle of domicile inviolability, thus putting at question the NCA’s powers of inspection (Spanish Cosmetic Toiletry and Perfumery Association - Stanpa)
Airbus Defence and Space (Toulouse)
This judgment assessed the legality of the dawn raids carried out by the Spanish Competition Commission (CNC) in the professional hairdressing sector in 2008 in relation to alleged price-fixing and other anti-competitive practices. The appeal was launched before the National Court by the (...)

The European Court of Justice dismisses applications to intervene in an appeal against a Commission decision not to grant legal privilege to two sets of documents copied by the Commission in the course of a dawn raid (Akzo Nobel)
Van Bael & Bellis (Brussels)
The European Court of Justice (ECJ) has dismissed applications to intervene in an appeal by Akzo Nobel Chemicals Ltd (Akzo) and Akcros Chemicals Ltd (Akcros) against a Commission Decision not to grant legal privilege to two sets of documents copied by the Commission in the course of a dawn (...)

The Swiss Supreme Court rules on legal privilege (Panalpina case)
Comité International de la Croix-Rouge
On October 28, 2008, the Swiss Supreme Court finally dismissed the claim from several companies which had been subject to dawn raids and opposed the use by the Swiss Competition Commission (“Comco”) in a cartel investigation of certain internal documents issued for or by in-house counsel on the (...)

The Spanish Competition Authority launches dawn-raids giving rise to controversy over defense rights (Colgate Palmolive España, L’Oreal, Stanpa)
European Court of Justice (Luxembourg)
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Garrigues
The entry into force of the new Spanish leniency program has significantly stepped up cartel investigations undertaken by the Spanish Competition Authority (hereinafter “CNC”). Under the new regulatory framework enacted by the Spanish Competition Act in July 2007, the CNC has initiated 48 (...)

Le Conseil de la concurrence applique pour la première fois l’arrêt Akzo sur le legal privilege (Défibrillateurs cardiaques implantables)
Ashurst
Article published in French in Concurrences, N° 1-2008, pp. 176-178. Il était reproché à cinq sociétés de s’être entendues afin de faire échouer l’achat groupé de défibrillateurs par 17 Centres Hospitaliers Universitaires (CHU). Plusieurs moyens de procédure avaient été soulevés par les parties dont la (...)

Le TPICE fait un (tout petit) pas en avant en matière de legal privilege (Akzo)
Ashurst
This article in French was first published in Concurrences Review, N° 4-2007, pp. 126-128 C’est un arrêt très attendu et très motivé, qui vient d’être rendu par le Tribunal de première instance (ci-après “TPI”) en matière de confidentialité des communications entre avocats et clients (encore appelé “legal (...)

The European Court of First Instance refuses to extend the protection of legal privilege in connection with European competition investigations to communications between companies and their in‐house lawyers (Akzo Nobel)
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Irwin Mitchell
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The second‐highest court in Europe ruled recently that attorney‐client privilege does not apply to certain communications between companies and their in‐house counsel. In its ruling in Akzo Nobel Chemicals Limited v. Commission on 17 September 2007, the European Court of (...)

Malta competition law and Human rights: Some insights
Superior Courts of Malta
Synthesis The following is the fruit of the author’s experience in preceding over the Commission for Fair Trading of Malta since its inception. The analysis attempts to identify gaps and other short-comings in the existing regime with an eye on issues relating to Human Rights. I. PROPER (...)

"Modernization" of the Hungarian Competition Act
bpv Jadi Nemeth Attorneys
Act LVII of 1996 on the prohibition of unfair and restrictive market practices ( Hungarian Competition Act, Consolidated version effective as of 1 November 2005 Note In 2005 important provisions of the Hungarian Competition Act (hereinafter “HCA”) were amended . Also, new rules about the (...)

The Spanish Competition Authority defines the scope of protection of legal privilege (Pepsi-Cola/Coca-Cola)
Martinez Lage, Allendesalazar & Brokelmann (Madrid)
The Tribunal de Defensa de la Competencia (TDC) issued on 22 July 2002 a decision in which it established that documents created by companies in the context of their defence in competition proceedings before the European Commission did not have to be delivered to the Servicio de Defensa de la (...)

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