Legal Professional Privilege in Competition Proceedings Before the European Commission: Beyond the Cursory Glance

80 Pages Posted: 29 Dec 2004

See all articles by Eric Gippini-Fournier

Eric Gippini-Fournier

European Commission, Legal Service; affiliation not provided to SSRN; Université de Tours

Abstract

Since the AM&S judgment of the European Court of Justice in 1982, the law of the European Union has expressly acknowledged a limited attorney-client privilege for written communications between a lawyer and his/her client. These documents cannot be requested or copied by the European Commission in antitrust investigations. The scope of this doctrine is narrower than attorney-client privilege in the United States or the equivalent doctrines under English law.

Discussion about the AM&S case remains surprisingly one-sided. Practitioners and academics from common law jurisdictions almost invariably posit that EU law on privilege should converge with the law applicable in those jurisdictions. This paper takes a different view. Its driving theme is that the basis and ratio for judicial recognition of a privileged communications doctrine in Community law must be defined explicitly, and that this definition may have important consequences as to the scope and practical administrability of the doctrine. Part I explores the principal rationales usually claimed for the privilege: the utilitarian view and the rights-based approach. A utilitarian view presents some conceptual difficulties and, although it may well inspire a commendable policy, does not necessarily command judicial recognition of a wide lawyer-client privilege rule. While different approaches to the privilege are perfectly conceivable, this article argues that the most powerful rationale lies in the rights of defence (right to an attorney and right against self-incrimination). EU law provides no basis compelling expansion of the privilege beyond the needs of the rights of defence. When checked against the European Convention of Human Rights, the current scope of the privilege at the EU level seems remarkably well tailored to fit the scope of the rights guaranteed by the Convention. This discussion serves as useful background to understand the position of EU law regarding operation of the privilege in competition proceedings conducted by the Commission. Part II describes the state of the law as it results from AM&S, and comments on the personal and material scope of the current privilege rule, on the possible reasons underlying its strict conditions, and on the procedural arrangements for resolving privilege disputes. It then considers whether changes in the legal context since AM&S have eroded the foundations of this judgment, and takes a brief look at the situation in some of the larger Member States having become members of the EU since 1982. Contrary to widespread belief, there does not seem to be a general move towards expanding the scope of legal privilege across the EU, but quite the opposite. Changes to the law would require more careful justification than is often offered.

Keywords: Antitrust, attorney-client privilege, legal professional privilege, European Union, European Law, competition, investigation

JEL Classification: K21, K41, L4

Suggested Citation

Gippini-Fournier, Eric and Gippini-Fournier, Eric, Legal Professional Privilege in Competition Proceedings Before the European Commission: Beyond the Cursory Glance. Available at SSRN: https://ssrn.com/abstract=635963

Eric Gippini-Fournier (Contact Author)

European Commission, Legal Service ( email )

B-1049 Brussels
Belgium

affiliation not provided to SSRN

Université de Tours ( email )

60 rue du Plat D'Etain
Tours, 37020
France

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