Is it time to rebrand legal professional privilege in EC competition law? An updated look

Abstract

The scope of legal professional privilege (LPP) in EC competition law remained unchanged after the European Court of First Instance (CFI) ruled on 17 September 2007 that the privilege would not be extended to written legal advice communications between clients and in‐house lawyers, regardless of whether the lawyer is a member of a bar or law society.1 The CFI judgment2 confirmed existing EC jurisprudence,3 which limited the privilege in 1982 to communications made by or to independent external lawyers in private practice in one of the EU Member States.4 The Akzo decision also explained the procedure that the European Commission (the Commission) must follow in the future when documents are discovered during an inspection (‘dawn raid’) and privilege is claimed by the target of the investigation. Furthermore, the Akzo decision clarified the possible application of the privilege to preparatory documents. This paper examines the Akzo decision in detail and suggests that, given its current application, the privilege in EC competition law should no longer be referred to as legal professional privilege, which is an English common law expression equally covering legal advice communications to and from in‐house lawyers and private practitioners and their clients (as well as litigation privilege).5 The EC term should be renamed to more accurately reflect its judicially‐delineated limits, thereby enhancing legal predictability and fostering a better awareness of its precise reach.6 The paper also considers the current state of the law on privilege in Canada, England and Wales, and Scotland; as well as featuring a brief overview of the privilege provisions in Commonwealth EU Member States. 1Joined Cases T‐125/03 and T‐253/03, Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd v Commission of the European Communities (the ‘Akzo decision’). Judgment of the Court of First Instance, delivered in open court, Luxembourg (17 September 2007) ⟨http://www.eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62003A0125:EN:HTML⟩ accessed 29 October 2008. 2Appeal pending. See below. 3 AM&S Europe Limited v Commission [1982] ECR 1575 (‘AM&S’). 4 AM&S was the first case in which the Court of Justice of the European Communities or European Court of Justice (‘ECJ’) ruled on how the privilege should apply in EC law. 5There are two branches of common law legal professional privilege: legal advice privilege and litigation privilege. Legal advice privilege protects the confidentiality of bona fide legal advice communications between lawyers and clients. Litigation privilege covers situations where the dominant purpose of confidential communications between a lawyer, client or third party is in connection with, or in contemplation of, legal proceedings. One commentator distinguished the two forms of LPP this way: ‘First, [legal] advice privilege protects confidential communications between a client and his legal adviser made for the purpose of giving or seeking legal advice. Second, litigation privilege, by contrast, is capable of extending beyond advice given by legal advisers, and will embrace communications with third parties, and documents prepared by third parties, where such communication comes into existence for the dominant purpose of being used in connection with actual or contemplated litigation.’ Diane Gilhooley, ‘The scope of legal professional privilege’ Times Higher Education (31 July 2008) ⟨http://www.timeshighereducation.co.uk/story.asp?storyCode=403049§ioncode=26⟩ accessed 27 May 2009. The doctrine is also referred to as ‘legal professional privilege’ in EC competition law, although its application is strikingly different from the common law version. See below. 6The privilege in EC competition law as determined in AM&S has also been called ‘a limited concept of legal professional privilege’. See Noticeboard, Cases and Comments, Legal Professional Privilege – European Union (2008) 12 E&P 72 at 72.