CJEU Offers Likely Expansion To Scope Of Legal Privilege In Antitrust Proceedings

• Jurisdiction: European Union
• Law Firm: Matheson
• Subject Matter: ntitrust/Competition Law, Antitrust, EU Competition
• Author: Ms Kate McKenna, Karen Reynolds, Simon Shinkwin, Ciar'n Campbell and Evelyn Soye
• Published date: 25 January 2023

Summary

On 8 December 2022, the Court of Justice of the European Union ("CJEU") delivered its judgment in Orde Van Vlaamse Balies a.o.Opens in new window¹ (the "Orde Ruling"), clarifying that legal professional privilege is protected not only as part of the rights of defence, but also under the right to protection of private communications.

In light of the Orde Ruling, the EU position now holds that in circumstances where an Irish company is (i) subject to EU proceedings, and (ii) wishes to invoke a claim of legal professional privilege in relation to specific advices given to it, the European Commission (or other investigatory body) cannot (without merit) reject this assertion of privilege on the basis that such advices do not relate to the defence of the company's rights, with respect to the proceedings at hand. Thus, the Orde Ruling holds that legal professional privilege should not only extend to communications exchanged between Lawyer/Client which relate to the defence of the proceedings, but to legal advice more generally (eg, the provision of competition and regulatory advice).

Narrowing the gap between the Irish and EU standard:

In the Irish context, legal professional privilege already explicitly covers the protection of confidential communications between lawyers and their clients which concern the seeking, giving and receiving of legal advice. As such, in expanding the scope of legal professional privilege, at an EU level, to legal advices which do not form part of the client's right of defence, the Orde Ruling has narrowed the divide between both the Irish and EU standard; a welcome change for Irish companies, the subject of an EU investigation.

It is, however, important to note one particular distinction between both the Irish and EU standard (post Orde) - the treatment of in-house lawyers.

Under Irish law, an in-house solicitor is entitled to assert a claim of legal advice privilege over relevant, confidential communications between him/her and certain other individuals within the company (in instances where he/she is acting in their capacity as legal adviser).

Notwithstanding the Orde Ruling, the CJEU has previously ruled (the Akzo decision) that under EU law, internal communications between in-house lawyers and company employees are not privileged in the context of competition law investigations by the European Commission. This continues to remain the case.

Although the judgment concerns tax proceedings, its outcome provides a basis for...