Legal privilege in EU competition cases
Legal privilege in EU competition cases

The following Competition practice note provides comprehensive and up to date legal information covering:

  • Legal privilege in EU competition cases
  • Why is legal privilege important?
  • EU legal privilege
  • The legal position
  • EU Legal Privilege in practice
  • Protecting privilege on a dawn raid by the European Commission
  • Applicability of EU Legal Privilege to merger control proceedings and other related points
  • EU legal privilege—quick reference guide

Legal privilege is the main means by which a company can resist disclosure of a confidential communication or document to a third party such as a competition authority or court. Whether or not a communication is privileged will depend on the parties to the communication and the purpose for which the document came into existence. The concept of legal privilege can differ, sometimes markedly, depending on the jurisdiction and type of proceeding.

This is a complex area of law where certain legal principles and decisional practices are still evolving.

Why is legal privilege important?

Privilege is important because it can provide an absolute bar to disclosure in the following cases:

  1. inspection visits under competition law by the competition and regulatory authorities ('dawn raids')

  2. document requests from competition or regulatory authorities, and

  3. disclosure in court proceedings.

EU legal privilege

The legal position

There is no express recognition of a concept of legal privilege in EU law, whether in Articles 101 and 102 TFEU or the regulations of the European Commission and the European Council implementing those provisions. The exceptions to the Commission’s general powers to examine documents have been developed through case law and particularly in the cases of AM & S Europe Ltd and Akzo Nobel Chemicals and Akcros Chemicals Ltd.

In AM & S, the Court of Justice recognised the fundamental right of every person to receive legal advice without

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