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Legal Professional Privilege in Competition Law Enforcement in the EU: How to achieve more appropriate protection of LPP in competition investigations ?

par Kameoka, Etsuko
Président du jury Waelbroeck, Denis
Promoteur Weyembergh, Anne
Co-Promoteur Bellis, Jean-François
Publication Non publié, 2021-07-01

Thèse de doctorat

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Résumé :

In common law jurisdictions, the right to protect confidentiality of communications between a professional legal adviser and his client has been acknowledged for several hundred years due to its important social benefit. In the EU, the European Courts recognised LPP in EU competition investigations much later with a very limited scope. While the common law notion of LPP, which was created a long time ago, is rather flexible in terms of its interpretation partially due to its broad scope, the interpretation of LPP in EU competition investigations is rigid and slow to catch up with the rapidly changing times. I believe that the main reasons why the importance of LPP has been emphasized in present times are as follows: protection of confidentiality is considered to be closely related to the rights of defence of the undertaking and administrative due process. Further, as justice is also best served when clients are able to fully confide in their legal counsel, LPP contributes to the administration of justice. However, I also emphasize the importance of LPP’s role as a principle of public policy and its interplay with requirements for efficient competition enforcement and compliance. The lack of adequate LPP damages effective compliance of competition law, because an undertaking hesitates to communicate with its lawyer to improve its conduct and avoid infringement of EU competition. Thus, LPP is protected as a fundamental human right and is beneficial not only to a privilege holder but also to the general public and the competition authorities. LPP in EU competition investigations has to evolve, because EU competition enforcement has been affected by the rapidly changing world. Even the European Courts have been forced towards the gradual broadening of the scope of LPP accordingly. In AM & S, it was held that LPP only covered communications from external lawyers, whilst in Hilti the summary of an outside lawyer’s advice that an in-house counsel prepared was protected, provided that the in-house lawyer did not add his own comments. In Akzo Nobel, the General Court (hereinafter referred to as “GC”) held that an undertaking under investigation is entitled to refuse to allow the Commission officials even a cursory look at specific documents allegedly covered by LPP, provided that such a cursory look would inevitably amount to the disclosure of the contents. However, these efforts do not keep pace with the developments in the modern society.The general trend has been towards a gradual harmonization of competition laws, and the treatment of LPP in competition law is no exception. The global harmonization of LPP will certainly offer significant advantages to privilege holders and competition agencies, although it must be a challenge as well, because the developments in LPP in competition laws are variant. In some jurisdictions, it is protected as a fundamental human right, but in others, a client’s right legitimately protecting confidentiality over communications with a lawyer does not exist. In the Western world, LPP is dedicated to the same overall rationale of encouraging open communication so that undertakings can obtain appropriate legal advice. In the continental European countries, LPP in general is treated rather as a right to correspondence and professional secrecy, which stems from human rights. The traditional rationale in Europe also emphasises the public interest aspect, because it facilitates a lawyer in preparing an efficient defense as a corroborator of the administration of justice. The U.S. courts also held that the privilege protects frank communication and promotes broad public interests, including compliance with law and the administration of justice. As for Japan, its competition authority was concerned that LPP could significantly obstruct its fact-finding function, but finally acknowledged it in 2020. The protection of LPP is actually dependent on the laws or customs of any particular country and culture. As the Japanese proverb says, ‘graft a bamboo shoot on a tree’, LPP should be consistent with the historical developments, societal values, and existing legal system of a country.However, I believe that global harmonization of LPP is possible and also necessary. Further, I trust that LPP in EU investigations is capable of becoming a global standard. If LPP in EU competition investigations becomes the global standard model for the harmonized LPP, this will be no doubt of interest to undertakings active in the EU market as well as the European Commission. In order to achieve this, more appropriate scope of LPP in the EU should be established. In particular, it is necessary to broaden the current scope of LPP in EU competition investigations, taking into consideration various problems which are actually found in and outside the EU. Based on my analysis and research, which is presented here, I propose an amended scope for LPP in EU competition enforcement and several possible methods of global harmonization of LPP.