Legal privilege

Anticompetitive practices

The Paris Court of Appeal grants legal privilege protection to in-house emails referring to the company’s defence strategy prepared by outside legal counsel (Whirlpool)
Epex Spot (Paris)
In its ruling issued on 8 November 2017, the Paris Court of Appeal (hereafter “the Court”) considers that in-house emails referring to a company’s defence strategy prepared by outside legal counsels but neither sent by or to an outside legal counsel were covered by lawyer-client privilege and (...)

The Brazilian Superior Court of Justice limits the confidentiality of the Brazilian 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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Carrilho Donas Advocacia
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 (...)

The Ontario Superior Court of Justice holds that information received by the Competition Authority at the proffer stage of its immunity and leniency programs is not protected from disclosure to other accused persons by settlement privilege (Nestlé Canada)
TSMC (San Francisco)
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 (...)

The UK Competition Authority consults on updates to its penalty and leniency guidance
European Commission (Brussels)
United Kingdom: Office of Fair Trading (OFT) consults on update Penalty and Leniency Guidance* On 26 October 2011, the OFT published two revised guidance documents, setting out proposals to update its approach to financial penalties and to awarding leniency in competition cases. The OFT will (...)

The Austrian Supreme Court rules on the requirements for granting the Competition Authority a search warrant to enter the premises of an attorney suspected of possessing relevant document in a cartel case (Feuerwehrfahrzeuge 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 (...)

Legal Privilege : An overview of EU and national case law
Stibbe (Amsterdam)
How to write a Foreword about the protection of Legal Professional Privilege ("LPP") highlighting national cases and contrasting them with competition law jurisprudence in the European Union ("EU")? A Foreword is short by definition and the protection of LPP has become an extensive and (...)

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 (...)

Unilateral Practices

The US District Court for the Northern District of California Judge expresses possible abuses in asserting legal privilege (Qualcomm / FTC)
DLA Piper Weiss-Tessbach (Vienna)
U.S. Qualcomm Case Update: Privilege Assertions* On 22 March 2018, in a court hearing in the Qualcomm case, Judge Koh expressed her concern over possible abuses in asserting legal privilege over certain documents. In January 2017, the U.S. FTC sued Qualcomm, alleging that the company (...)

The EU 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 (...)

Mergers

The UK Competition and Markets Authority fines a company for failure to comply with document requests (Sabre / Farelogix)
Van Bael & Bellis (Brussels)
On 11 October 2019, the UK’s Competition and Markets Authority (“CMA”) fined the airline technology company Sabre Holdings £ 20,000 for failing to comply with two Section 109 Enterprise Act notices during the CMA’s in-depth investigation into its proposed acquisition of Farelogix, Inc. Section 109 (...)

The Ontario Superior Court of Justice clarifies the Canadian Competition Authority 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 Finnish Parliament approves the Competition Act introducing amendments to both merger and antitrust rules
European Commission (Brussels)
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 (...)

Procedures

The Japanese FTC publishes new draft rules and guidelines establishing limited confidentiality protections for attorney-client in certain investigations
Morrison & Foerster (Tokyo)
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Morrison & Foerster (Tokyo)
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Morrison & Foerster (Tokyo)
Japan FTC Proposes New Attorney-Client Privilege Rules for Public Comment* In April 2020, Japan’s antitrust regulator, the Japan Fair Trade Commission (JFTC), issued draft rules and guidelines establishing, among other things, limited confidentiality protections for attorney-client (...)

The US Supreme Court issues a decision limiting the circumstances under which a federal agency may be compelled to disclose the confidential information received by the agency, from a private party (Food Marketing Institute / Argus Leader Media)
Cleary Gottlieb Steen & Hamilton (Washington)
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Cleary Gottlieb Steen & Hamilton (Washington)
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Cleary Gottlieb Steen & Hamilton (Washington)
On June 24, 2019, the Supreme Court of the United States issued an important decision limiting the circumstances under which a federal agency may be compelled to disclose “confidential” information the agency received from a private party, and which the agency seeks to withhold under the Freedom (...)

The Turkish Competition Authority fines a fertiliser supplier for hindering an on-site inspection (Ege Gübre Sanayii)
ELIG Gürkaynak Attorneys-at-Law (Istanbul)
On May 3rd, 2019 the Turkish Competition Board (“Board”) published its reasoned decision dated February 7th, 2019 and numbered 19-06/51-18 with respect to the hindering of the on-site inspection conducted in Ege Gübre Sanayii A.Ş. (“Ege Gübre”). The decision concerns the evaluation on whether Ege (...)

The OECD holds a roundtable on the treatment of legally privileged information in competition proceedings
OECD - Competition Division (Paris)
Most OECD jurisdictions protect the confidentiality of the relationship between a client and its attorney, and grant parties in competition proceedings the right to resist disclosure of protected information to public bodies and third parties. Legal professional privilege is a corollary of the (...)

The President of the EU General Court rejects an application to prevent publication of a Commission’ decision (EURIBOR)
Gomez Acebo & Pombo (Brussels)
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Gomez Acebo & Pombo (Brussels)
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Gomez Acebo & Pombo (Brussels)
On 7 December 2016, the European Commission adopted a decision whereby it fined Crédit agricole, JP Morgan Chase and another bank EUR 485 million for participating in the so-called EURIBOR cartel. The investigation of the Commission revealed that the banks in question had colluded on certain (...)

The High Court of Delhi upholds the right to counsel during antitrust investigation by Director General but restricts the scope of counsel to exclude direct consultation with client (Oriental Rubber)
Vaish Associates Advocates (New Delhi)
Delhi High Court upholds right to counsel during DG investigation* The division bench of the Delhi High Court by its judgement dated May 24, 2018 in Competition Commission of India and Anr. v. Oriental Rubber Industries Pvt. Ltd. has upheld the right of a person summoned by the Director (...)

The Federal Court of Appeal of Ottawa denies the Competition Bureau public interest privilege (Vancouver Airport Authority)
Norton Rose Fulbright (Toronto)
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Norton Rose Fulbright (Toronto)
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Norton Rose Fulbright (Toronto)
Last April, the Competition Tribunal (Tribunal) rejected arguments that the Tribunal’s longstanding approach to public interest privilege should re-evaluated and found that class privilege protected documents from disclosure that the Competition Bureau (Bureau) had collected from third parties (...)

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 (...)

The Japanese FTC and the EU Commission announce their intention to upgrade the current antitrust co-operation agreement between Japan and the EU
McDermott Will & Emery (Brussels)
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McDermott Will & Emery (Brussels)
ENHANCED SHARING OF ANTITRUST EVIDENCE: NEW EU/JAPAN COOPERATION AGREEMENT* On 15 March 2016, the Japan Fair Trade Commission (JFTC) and the European Commission (Commission) announced their intention to upgrade the current antitrust co-operation agreement between Japan and the European Union. (...)

The Supreme Court of British Columbia denies disclosure based on public interest privilege (Pro-Sys / Microsoft)
Cassels Brock (Toronto)
Documents and information that the Competition Bureau collects from third parties during its investigations are protected by public interest privilege from disclosure to plaintiffs in private actions, the BC Supreme Court has ruled. The plaintiffs in a class action alleging that Microsoft (...)

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 (New York)
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 (Dublin)
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 (Frankfurt)
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 (Frankfurt)
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 French Supreme Court rules that globally seizing electronic mailboxes is limited by the principle of legal professional privilege (Medtronic)
Court of First Instance of Namur
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
Court of First Instance of Namur
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 (Belgacom)
CaaStle (New York)
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Axinn Veltrop & Harkrider (New York)
This article has been nominated for the 2014 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. 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 (...)

The Brussels Court of Appeal recognises legal professional privilege to in-house lawyers (Belgacom)
Van Bael & Bellis (Brussels)
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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 (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 Swiss law enters into force and extends the scope of protection relating the legal professional privilege
Këllezi Legal (Geneva)
A new law entered into force in May 2013 extending the scope of protection of the legal professional privilege in Switzerland in various administrative, civil, and criminal procedures, thereby improving companies’ right to freely communicate with their lawyers. Prior to this, documents located (...)

A German Regional Court approves seizure by Federal Cartel Office of audit documents prepared by external counsel
Court of First Instance of Namur
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 Polish Competition Authority proposes amendments to the act on competition and consumer protection
WKB Wiercinski Kwiecinski Baehr (Poznan)
Poland: a grand new opening?* (1) Significant changes to the Polish Competition Law are on the way. One could probably not imagine a better case for a debut in this blog. The Polish Competition Authority, or PCA (the President of the Office for Protection of Competition and Consumers), (...)

The Spanish Supreme Court validates the seizure of documents protected by legal privilege and those beyond the scope of the inspection order (STANPA)
Lonza (Basel)
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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
Court of First Instance of Namur
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 EU Court of Justice confirms that legal professional privilege under EU law does not extend to communications with in-house lawyers (Akzo Nobel)
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 Nobel)
Stibbe (Amsterdam)
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Outer Temple Chambers (London)
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)
Court of First Instance of Namur
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 (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 Authority brings national competition Law in line with EU 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)
Court of First Instance of Namur
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
Oppenheim (Budapest)
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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 Court of Appeal issues a decision that renders illegal some of the Competition Authority’s inspection practices (CNC)
Garrigues (Brussels)
Spanish Court of Appeal strikes down CNC’s Inspection Practices* The Audiencia Nacional (‘AN’) – i.e. the Spanish Court in charge of the review of decisions adopted by the Spanish National Competition Commission (‘CNC’) – recently delivered an important judgment quashing some of the CNC’s (...)

The Spanish National Court finds that the ANC has exceeded its powers in taking copies of company employees hard drives and breached the principle of domicile inviolability (Spanish Cosmetic Toiletry / Stanpa)
Latam Airlines (Las Condes)
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 EU Court of Justice dismisses an application to intervene in appeals against the Commission’s decision not to grant legal privilege to two sets of documents copied by the Commission in the course of a dawn raid (Akzo Nobel)
Court of First Instance of Namur
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 in a cartel conducted by road transports and warehousing companies (Panalpina)
International Committee of the Red Cross (Geneva)
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 (Brussels)
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 (...)

The Swiss Federal Criminal Court rules on legal privilege (Panalpina)
International Committee of the Red Cross (Geneva)
The Swiss Federal Criminal Court (“SFCC”) recently issued a judgment confirming that, under Swiss law, professional secrecy and therefore legal privilege do not apply to communications between a company and its in-house counsel in the context of seizure of documents by the Swiss Competition (...)

The Portuguese Commercial Court holds that in-house lawyers are covered by national rules on legal privilege (Unilever Jerónimo Martins)
PLMJ (Lisbon)
In a decision issued on 16 January 2008, the Commercial Court of Lisbon recognised that the protection of legal professional privilege applies to in-house lawyers and, in doing so, it rejected the argument of the Portuguese Competition Authority (PCA) that EU case law should apply to this (...)

The EU Court of First Instance refuses to extend the protection of legal privilege in connection with EU competition investigations to communications between companies and their in‐house lawyers (Akzo Nobel)
Paul Hastings (Paris)
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Pitmans (London)
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Commonwealth Bank of Australia (Sydney)
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 (...)

Maltese competition law and human rights: some insights
Superior Courts of Malta (Valletta)
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 (...)

The Hungarian Parliament "modernizes" the Hungarian Competition Act (HCA)
Bassola (Budapest)
Note In 2005 important provisions of the Hungarian Competition Act (hereinafter “HCA”) were amended . Also, new rules about the criminalisation of certain collusions in public procedures were incorporated into the Hungarian Criminal Code . 1. The system of individual exemptions was abolished. 2. (...)

The Spanish Tribunal for the Defence of Competition 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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