Legal professional privilege in the European Union is defined by the national law of individual EU Member States. However, EU regulations on legal professional privilege still exist and apply to the regulation of EU competition law by the European Commission.
EU legal professional privileges must also be considered in competition law matters concerning, or likely involving, the European Commission. The EU rules on legal professional privilege apply in this case, irrespective of any national rules on legal professional privilege.
EU legal professional privilege shall apply only where the inquiry is carried out by the European Commission (including where the European Commission is assisted by a national competition authority of an EU Member State). The investigation by the national competition authority of the EU Member State shall be subject to the relevant national rules on legal professional privilege, even in situations where the national competition authority of the EU Member State investigates potential infringements of EU competition law.
The EU’s legal professional privilege is an exception to the authority of the European Commission to investigate.
There are no constitutional requirements that specifically define the EU’s legal professional privilege. In the absence of these, the EU Court of Justice accepted the EU’s legal professional privilege as a constitutional right in 1982, in the landmark case of AM & S v. European Commission (Case C-155/79). The EU Court of Justice held that the EU’s legal professional privilege was necessary in order for any person to be able to consult a lawyer without restrictions. The EU’s legal professional privilege is an important corollary to the complete exercise of the rights of defence.
While the decisions of the Court of Justice recognizing the EU’s legal professional privilege refer to inquiries by the European Commission into anti-competitive behaviour, the EU’s legal professional privilege is also assumed to apply where the European Commission exercises its powers of inquiry in relation to merger control and state aid matters.
There are two requirements that must be fulfilled in order for a written correspondence to be covered by the EU legal professional privilege:
Relations with the in-house attorney are also not covered by EU legal privilege, except if the in-house lawyer is a member of the appropriate bar association or legal society and regardless of the status of the in-house counsel under national law. The Court of Justice of the EU held that the relationship of an in-house lawyer as an employee of a corporation by its very nature does not allow them to disregard the business strategies followed by their employer. Communications with lawyers who are eligible outside the EEA are not covered.
The Court of Justice of the EU has accepted three types of documents covered by the EU legal professional privilege in the implementation of the two conditions set out above:
Written correspondence from an independent EEA-qualified lawyer to their client were exchanged after the start of an administrative procedure by the European Commission. This category also refers to earlier written correspondence relating to the subject matter of the administrative procedure.
The client should be careful not to provide their views or amendments to the legal advice given by an external EEA trained lawyer in the internal notes. They will not be covered by the EU’s legal professional privilege.
Preparatory papers, even though they were not shared with a lawyer or were not produced for the purpose of being physically submitted to a lawyer, provided that they were drawn up solely for the purpose of receiving legal advice from a lawyer in the exercise of the rights of defence.
Such preparatory documents can include, for example, working documents or summaries prepared as a means of collecting information that would be useful or necessary for an external EEA-qualified external lawyer to understand the meaning, nature or scope of the facts for which their assistance is sought.
This type of documents is construed as restrictive. It is for a client relying on the EU legal professional privilege to show that the document in question has been drawn up with the sole purpose of obtaining legal advice from a lawyer. This must be evident from the substance of the document itself or the sense in which the document was drawn up and found.
EU legal professional protection does not prohibit the client of a lawyer from revealing written correspondence between them if the client feels that it is in their interest to do so. It is necessary to waive the EU’s legal professional privilege vis-à-vis the European Commission and to reserve it vis-à-vis others.
Thus, the protection of EU legal professional privileges can vary significantly from the protection of legal professional privileges under national law. For example, the EU’s legal professional privilege does not protect legal advice from in-house counsel. This is in contrast to the national laws on the defense of professional rights in Belgium, Greece, the Netherlands, Norway, Portugal, England and Wales and other jurisdictions. EU legal professional privilege only covers communications made for the intent and in the interests of the client’s rights of defence. In certain countries, the protection of legal professional privileges encompasses a broader spectrum of legal advice. EU legal professional privilege covers communications with EEA-qualified lawyers only, while national legislation in England and Wales protects communications with any lawyer. In certain jurisdictions, national laws provide more limited protection than the EU’s legal professional privilege.
For example, only communications generated after the start of an investigation are covered under national legal professional privilege rules in Germany.
Companies and their attorneys need to be mindful of these gaps and to consider the threats they face in their operating jurisdictions. It is therefore of the utmost importance to have clear internal protocols to deal with legal professional privileges and to understand the differences between the different systems of legal professional privilege.