ARTICLE: CARTELS - EUROPEAN COMPETITION POLICY - ENFORCEMENT BY MEMBER STATES - LEGAL PROFESSIONAL PRIVILEGE - PRIVATE ENFORCEMENT

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

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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 authorities of the EU Member States (addressing in particular the question whether those EU Member States that extend legal professional privilege to in-house lawyers are in breach of EU law), as well as on private enforcement.

I. Introduction and overview 1. This paper discusses legal professional privilege in the context of EU antitrust enforcement. 2. EU antitrust law refers here to the prohibition of cartels and other restrictive agreements and the prohibition of abuse of a dominant position currently contained in Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU). [1] It does not include merger control under the EU Merger Regulation, [2] which is not discussed in this paper. [3] 3. Legal professional privilege is the expression commonly used to describe what the EU Court of Justice has called the “principle of confidentiality of written communications between lawyer and client.” [4] As has been pointed out repeatedly, [5] the expression “legal professional privilege” is

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