of the European Union, Court of Justice

Legal privilege

Institution Definition

In Akzo case law, the Court of Justice of the European Union defined the protection of confidentiality of communications between lawyers and their clients (also known as legal professional privilege) as follow: "That confidentiality serves the requirement, the importance of which is recognised in all of the Member States, that every person must be able, without constraint, to consult a lawyer whose profession entails the giving of independent legal advice to all those in need of it. "(...) l’objet consiste tant à sauvegarder le plein exercice des droits de la défense des justiciables qu’à protéger l’exigence que tout justiciable doit avoir la possibilité de s’adresser en toute liberté à son avocat. (...) First, that protection seeks to safeguard the public interest in the proper administration of justice in ensuring that a client is free to consult his lawyer without fear that any confidences which he imparts may subsequently be disclosed. Secondly, its purpose is to avoid the harm which may be caused to the undertakings rights of the defence as a result of the Commission reading the contents of a confidential document and improperly adding it to the investigation file." © Court of Justice of the European Union

Articles

Wouter Wils Fundamental Procedural Rights and Effective Enforcement of Articles 101 and 102 TFEU in the European Competition Network

February 2020

This paper deals with the fundamental procedural rights of companies that are targeted in the enforcement of Articles 101 and 102 TFEU by the European Commission or the competition authorities of the EU Member States. The paper first provides a (non-exhaustive) list of such rights as applicable (...)

Wouter Wils Legal professional privilege in EU antitrust enforcement: Law, policy & procedure

February 2019

This paper discusses the law, policy and procedure of legal professional privilege in EU antitrust enforcement. It focuses primarily on the enforcement of Articles 101 and 102 TFEU by the European Commission, but also touches briefly on the enforcement of EU antitrust law by the competition (...)

Nathalie Jalabert-Doury Current developments in European and French antitrust investigations (January – June 2018)

September 2018

This article provides an update on the rules applying to antitrust investigations carried out by DGCOMP and the French competition authorities. The new rules, case law and agency initiatives in that field over the past six months are covered. At the EU level, the Alcogroup judgment of the (...)

Nathalie Jalabert-Doury Current developments in European and French antitrust investigations (June - December 2017)

February 2018

This article provides an update on the rules applying to antitrust investigations carried out by DG COMP and the French competition authorities. The new rules, case law and agency initiatives in that field over the past six months are covered. At the EU level, the Intel Court ruling on the (...)

Denis Fosselard, Mathias Traub Mathias Traub (Bosch): Antitrust Law around the world – An in-house view

February 2017

Mathias TRAUB, head of the antitrust department at one of the world’s leading automotive suppliers, discusses his work as an-house counsel, the challenges of this position and notably, how it differs from his previous experience in private practice. Interview conducted by Denis Fosselard, (...)

Nathalie Jalabert-Doury Update of competition investigations in the EU and in France

May 2015

In the period covered by the present article, several European court cases may be mentioned, including the Orange, Nexans and EPH court decisions. The European Court for Human Rights also delivered a ruling in the Delta Pekarny case concerning the requirement of judicial review. In France, the (...)

Elai Katz, Suzanne Wachsstock Suzanne E. Wachsstock (American Express): Counseling a complex global business

September 2014

Interview conducted by Elai Katz, Cahill Gordon & Reindel LLP, New York. 1. How did you end up becoming an in house lawyer? Did you plan to end up in this role? I’ll take a risk and start with a confession – I did not take an antitrust class in law school because I thought it sounded a (...)

Alain Ronzano, Bastien Thomas, Christelle Adjémian, Emmanuel Frot, Mathilde Brabant Competition journals: Jan. - March 2014

May 2014

This section of the review Concurrences selects articles and working papers on themes related to competition laws and economics, mainly, but not only, in the English and French languages. This compilation does not attempt to be exhaustive but rather a survey on themes important in the area. The (...)

Miranda Aldrich de Savorgnani, Rein Wesseling The legal professional privilege after the 2010 Akzo judgment

February 2011

L’arrêt AKZO de la Cour de Justice de l’Union européenne du 14 septembre 2010 confirme la jurisprudence relative au champ d’application du legal privilege. La correspondance du juriste d’entreprise n’est pas protégée dans le cadre de la procédure communautaire de la concurrence. Selon la Cour de justice, (...)

Francesco Martucci EU Competition Enforcement and Human Rights

February 2009

This book discusses the procedural rights enjoyed by those being investigated under Articles 81 and 82 of the EC Treaty and of the Merger Control Regulation, and their right to challenge the Commission’s decision in the Community Courts. It further assesses how their rights to ‘due process’ in (...)

Isabelle Cretenet, Jean-Charles Savouré Legal privilege: An ethics issue

September 2008

How can progress be made in the debate over legal privilege for in-house attorneys? With the recent judgment of the European Court of First Instance in the Akzo-Nobel case (currently pending before the Court of Justice), the issue is more pressing than ever. Between the extreme positions (...)

What is the extent of the legal privilege in EU Member States?

September 2008

Concurrences readers will find below a selection of articles answering to the question « What is the extent of the legal privilege? » for 10 countries. Bulgaria The persons requested by the Commission for Protection of Competition to provide documents or information in the course of the (...)

Frédéric Puel, Laurent François-Martin Competition inquiries: Legal status of the documents seized or copied

May 2008

The increasing number of antitrust dawn raids and seizures raises the question of the scope of the National Competition Authority’s and the European Commission’s rights regarding seized or copied documents. In principle, the search warrant issued by the judge constitutes the strict scope of the (...)

Isabelle Cretenet, Jean-Charles Savouré Akzo: May in-house lawyers write anything?

December 2007

Legal privilege is particularly meaningful in competition law. It has become more important than ever due to I/2003 European regulation, companies being now required to perform their own conformity assessments of agreements and practices in accordance with it. The authors stress that (...)

Jean-Paul Tran Thiet Protection of business secrets before NCAs and Regulators

September 2007

There are plenty of discrepancies in the way competition authorities and independent regulators are dealing with the protection of business secret. The tables of this article provide an overview of the different texts governing this topic, as well as the different definitions of what business (...)

Events

Stéphanie Fougou, Martin d’Halluin, Jacques Buhart, Clara Ingen-Housz, Anthony W. Mariano, Javier Ramirez Legal Privilege in the EU & the US: What’s new?

16 September 2021

Webinar organised by Concurrences, in partnership with McDermott Will & Emery, with Jacques Buhart (Partner, McDermott Will & Emery), Martin D’Halluin (SVP, Global Competition Law & Policy Counsel, News Corp), Stéphanie Fougou (Secretary-General, Ingenico), Clara Ingen-Housz (Chief Ethics & Compliance Officer, Group Legal Counsel (Antitrust, Anticorruption, Economic sanctions), Saint-Gobain), Anthony Mariano (Trial Attorney, Washington Criminal II Section, Antitrust Division, U.S. Department of Justice) and Javier Ramírez Iglesias (Chair of Advocacy, Association of Corporate Counsel Europe).

Annemarie Ter Heegde, Elizabeth Kraus, Jacques Buhart, Martin d’Halluin, Javier Ramirez Legal privilege and antitrust in the EU and the US : What’s new under the sky ?

27 November 2020

Webinar organised by Concurrences, in partnership with McDermott Will & Emery, with Jacques Buhart (Partner, McDermott Will & Emery), Elizabeth Kraus (Deputy Director for International Antitrust, US FTC), Martin D’Halluin (Senior Vice President, Global Competition Law & Policy Counsel, News Corp), Javier Ramírez Iglesias (Chair of Advocacy, Association of Corporate Counsel Europe) and Annemarie Ter Heegde (Case Handler - Antitrust case support and policy, DG COMP).

Aurelien Hamelle, Laure Lavorel, Jacques Buhart, Thibault Delorme Legal privilege and competition law: What’s new ?

2 November 2020

Webinar organised by Concurrences, in partnership with McDermott Will & Emery, with Jacques Buhart (Partner, McDermott Will & Emery), Thibault Delorme (General Counsel, Air Liquide), Aurélien Hamelle (General Counsel, Total) and Laure Lavorel (President, Cercle Montesquieu).

Annemarie Ter Heegde, Marta Giner Asins, Thomas Sely Request for information by competition authorities

4 February 2016

Lunchtalk organized by Concurrences Review in partnership with Norton Rose Fulbright and Kroll Ontrack.

Anne Perrot, Olivier Fréget, Virginie Beaumeunier Towards a Level playing field for the legal professions

9 December 2015

Law & Economics Workshop organized by Concurrences review in partnership with MAPP and Fréget-Tasso de Panafieu.

André Marie, Catherine Gonzalez, Emmanuel Laurentin, Marie Hindré, Thomas Sely, Virginie Beaumeunier Digital investigations, e-discovery: what’s new?

2 July 2015

Workshop organized by Concurrences in partnership with DLA Piper, Kroll Ontrack and AFJE.

Laurent Ayache, Laurent Benzoni, Lionel Lesur, Nathalie Dostert Private enforcement: Damage assessment

8 June 2015

Law & Economics Workshop organized by Concurrences in partnership with McDermott Will & Emery and Tera Consultants.

Antoine Choffel, Laurence Idot Antitrust proceedings and Rights of Defense

16 January 2013

Workshop organized by Concurrences in partnership with Gide Loyrette Nouel.

Antoine Choffel, Laurence Idot Fundamental rights in competition proceedings

22 November 2012

Laurence Idot
Pascal Cardonnel
Antoine Choffel

Books

Nathalie Jalabert-Doury Competition Inspections under EU Law - A Practitioner’s Guide Chapter 1 - Inspections Upon Decision (Regulation 1-2003, Article 20(4))
I. Nature, Agents and Scope

10 Nov 2020

Competition Inspections under EU Law – N. Jalabert-Doury7 Chapter 1 Inspections Upon Decision (Regulation 1/2003, Article 20(4)) Most EU inspections are carried out on the basis of a Commission decisio\?fi?n, which may be appealed ex post but is mandatory for the undertakings concerned. The (...)

Nathalie Jalabert-Doury Competition Inspections under EU Law - A Practitioner’s Guide II. Compatibility With Fundamental Rights

10 Nov 2020

Inspections Upon Decision (Regulation 1/2003, Article 20(4)) Competition Inspections under EU Law – N. Jalabert-Doury17 in respect of the undertakings' rights of defence, including the righ\?fi?t to be heard and the right to an effective remedy before a tribunal. A more consistent framework for (...)

Nathalie Jalabert-Doury Competition Inspections under EU Law - A Practitioner’s Guide VII. The Search, Review and Copy of Relevant Information

10 Nov 2020

Inspections Upon Decision (Regulation 1/2003, Article 20(4)) Competition Inspections under EU Law – N. Jalabert-Doury 109 VII. The Search, Review and Copy of Relevant Information The search, review and copy of relevant information is the task that absorbs most of the inspection team's resources (...)

Philippe Coen 2020 Competition Case Law Digest - A Synthesis of EU, US and National Leading Cases Procedure
Legal Privilege

31 Jan 2020

Procedure 203 Legal Privilege: An Overview of EU and National Case Law PhiliPPe C oen european Company lawyers Association (eClA) philippe.coen@ecla.eu Be not astonished at new ideas; for it is well known to you that a thing does not therefore cease to be true because it is not accepted by (...)

Marcus Smith, Simon Holmes 2020 Competition Case Law Digest - A Synthesis of EU, US and National Leading Cases Rights of Defence and Competition Law

31 Jan 2020

281 Rights of Defence and Competition Law: An Overview of EU and National Case Law simon h olmes, sir m ArCUs s mith qC * UK Competition Appeal Tribunal (London) Decisions of the Commission are reviewable for their legality under Article 263 of the Treaty on the Functioning of the European (...)

Karen Williams Ian Forrester - A Scot Without Borders Liber Amicorum Vol. II The current role oh the Hearing Officer: another step change

1 Dec 2015

405 Ian S. Forrester | A Scot without Borders - Liber Amicorum - Volume II The current role of the Hearing Offlcer : another step change K AREN W ILLIAMS * I. Introduction Competition lawyers dealing with cases involving the European Commission’s antitrust proceedings pursuant to Articles 101 (...)

Frank Fine Antitrust in Emerging and Developing Countries: Featuring China, India, Mexico, Brazil, South Africa Part II: China
Dawn Raids in the EU and China: Fact and Fantasy

23 Sep 2015

ANTITRUST IN EMERGING AND DEVELOPING COUNTRIES | 2014 E DITION 57 Dawn Raids in the EU and China: Fact and Fantasy FRANK FINE 1 frank.flne@dehenglaw.com Head of International Antitrust, DeHeng Law Offlces Executive Director, China Institute of International Antitrust and Investment Abstract (...)

Nadine Kiran Meetarbhan Antitrust in Emerging and Developing Countries: Featuring China, India, Mexico, Brazil, South Africa International Cooperation on Competition Matters: An Emerging Enforcer’s Perspective

23 Sep 2015

ANTITRUST IN EMERGING AND DEVELOPING COUNTRIES | 2014 E DITION 185International Cooperation on Competition Matters: An Emerging Enforce r’s Perspective KIRAN NANDINEE MEETARBHAN jaynyam@yahoo.co.in Former Executive Directo r, Competition Commission of Mauritius Abstract Y oung emerging (...)

A B C D E F G H I J L M N O P R S T U V

A

Absolute territorial protection • Abuse of dominant position • Abuse of economic dependence • Access to essential facility • Access to information • Access to the file • Advocacy • Agency agreement • Agent • Agreement (notion) • Amicus curiae • Ancillary restraints • Annulment • Anticompetitive objet or effect • Anticompetitive practices • Antitrust • Applicable law • Arbitration • Article 11 letter • Automotive distribution

B

Barriers to entry • Bid rigging • Black cause • Block exemption (Regulation) • Boycott • Brand competition • Burden of proof • Business secrets • Buyer power

C

Cartel • Clearance phase I (merger) • Clearance phase II (merger) • Collecting society • Collective dominance • Collective redress (class action) • Comity • Competence • Competition policy • Complaint • Compliance programme • Compulsory license • Concerted practices • Concession • Concurrent jurisdiction • Consumers protection • Consumers’ associations • Contract • Control (change) • Control (notion) • Cooperation Agreement • Cooperation between competition authorities • Coordinated effects • Copyright • Corporate group • Corruption • Cost-based access • Criminal sanctions • Cross subsidisation

D

Damages • Dawn raids • De minimis notice • Direct effect • Discriminatory practices • Distribution agreement • Dominance (notion)

E

ECHR • Economic analysis • Economic efficiency • Economies of scale • Effect on trade between Member States • Effective judicial protection • EFTA Surveillance Authority (ESA) & Court • Environmental protection • Essential facility • European Competition Network (ECN) • Excess prices • Exchanges of information • Exclusive distribution • Exclusive purchasing • Exclusive right (Art. 106 TFEU) • Exclusivity clause • Exhaustion • Extra-territoriality

F

Failing firm defence • Fidelity rebates • Fine • Fine mitigating • Foreign direct investment (FDI) • Form CO • Franchising • FRAND • Free riding

G

Geographic market • Group purchasing organization • Gun jumping

H

Hard core restrictions • Hearing officer • Horizontal agreement

I

Independence and impartiality • Individual exemption • Intellectual property right • Inter-brand competition • Interim measures • International co-operation • International competition network (ICN) • Investigations / inquiries

J

Joint control • Joint venture • Judicial review

L

Legal privilege • Leniency • Lerner index • Letter of rejection of complaints • Licensing • Limitation period • Low prices

M

Mandatary (distribution) • Margin squeeze • Market economy investor • Market power • Market share • Media pluralism • Merger (notion) • Merger (prohibition) • Merger (withdrawal) • Merger control procedure • Merger remedies • Minority shareholdings • Misinformation • Misinformation

N

Ne bis in idem • Network effect • Non-competition clause • Notification • Nullity

O

Oligopoly

R

Referral (merger) • Refusal to deal • Regulated prices • Regulation • Relevant market • Remedies (antitrust) • Request for information • Resale price maintenance (RPM) • Resale-below-cost • Restriction on exportation • Right against self-incrimination • Rights of defence • Rule of reason

S

Sector inquiry • Selective distribution • Services of general economic interest • Single branding • Sole control • Spill-over effects • Standard-Essential Patent (SEP) • State action defense • State aid (compatibility) • State aid (existing aid) • State aid (notification) • State aid (notion) • State aid (recovery) • State aid (tax ruling) • State aid (unlawful aid) • State measure • Substitutability • Sudden break of established business relationships

T

Test SIEC (merger) • Test SLC (merger) • Transfer of technology • Transfer pricing • Transparency • Trustee (mergers) • Turnover threshold (merger) • Two-sided market • Tying or tied selling

U

Undertaking (notion) • Unfair competition • Universal service • Upstream market

V

Vertical agreement • Vertical restraints (or restrictions)