CYIL vol. 10 (2019)

MICHAL PETR CYIL 10 ȍ2019Ȏ correspondence and the inability to discuss with his lawyer in private while in custody, the ECtHR concluded that: “The Court considers that an accused’s right to communicate with his advocate out of hearing of a third person is part of the basic requirements of a fair trial in a democratic society and follows from Article 6 para. 3 (c) […] of the Convention. If a lawyer were unable to confer with his client and receive confidential instructions from him without such surveillance, his assistance would lose much of its usefulness, whereas the Convention is intended to guarantee rights that are practical and effective […]”. 12 It is noteworthy to add that whereas under the right to privacy, an interference by public authority may be justified if it is in accordance with the law, has a legitimate aim and is necessary in a democratic society [Article 8 (2) of the Convention], the right to fair trial does not allow for any such exemption. Any interference thus seems to be justifiable only when the privileged channel of communication is being abused. 13 Finally, in the ECtHR’s understanding, the privilege covers all mean of communication, not just the written form. III. LPP under the EU Competition Law As many other principles, the LPP doctrine was originally developed for the purposes of competition law enforcement. It is noteworthy that even though the EU rules on application of completion law do not address this topic, 14 the CJ EU recognised in its first judgement concerning LPP – the AM & S Europe case 15 – that “the community law […] must take into account the principles and concepts common to the laws of [the Member States] concerning the observance of confidentiality, in particular, as regards certain communications between lawyer and client. That confidentiality serves the requirement, the importance of which is recognised in all the Member States, that any person must be able, without constraint, to consult a lawyer whose profession entails the giving of independent legal advice to all those in need of it”. 16 The CJ EU conceded that the extent of the protection varies among the different Member States, it nonetheless distilled from their regulations two common characteristics of LPP: “there are to be found in the national laws of the Member States common criteria inasmuch as those laws protect, in similar circumstances, the confidentiality of written communications between lawyer and client provided that, on the one hand, such communications are made for the purposes and in the interest of the client’s right of 12 Ibid , par. 48; emphasis added. 13 ECtHR judgement Campbell v. the United Kingdom (sub 5), par. 48; see also NAZZINI, R. (sub 7), p. 184. 14 It ought to be added that when the original regulation on the application of EU competition law was drafted in 1962, the Council did not follow the proposal of the European Parliament to include provisions on LPP and right not to incriminate oneself; see VAN BAEL, I. Due Process in EU Competition Proceedings . Wolters Kluwer, 2011, p. 153. 15 CJ EU judgement of 18 May 1982 155/79 AM & S Europe Limited v Commission of the European Communities , ECLI:EU:C:1982:157. 16 Ibid , par. 18

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