CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ LEGAL PROFESSIONAL PRIVILEGE IN INTERNATIONAL, EUROPEAN AND CZECH LAW defence and, on the other hand, they emanate from independent lawyers, that is to say, lawyers who are not bound to the client by a relationship of employment” . 17 1. Legal basis The LPP is perceived as a guarantee of fair trial under the EU law, 18 specifically respect for the rights of defence, 19 as currently defined by the Charter of Fundamental Rights of the European Union (hereinafter referred to as “Charter”). 20 This has important practical consequences, in particular that the privilege only applies to case-specific communication; as the CJ EU puts it, it applies to: “all written communication exchanged after the initiation of the administrative procedure […] which may lead to a decision on the application of Articles [101 and 102 TFEU] or to a decision imposing a pecuniary sanction on the undertaking. It must also be possible to extend it to earlier written communications which have a relationship to the subject-matter of that procedure”. 21 The protection under the EU law may thus be narrower than would be the case under the Convention. 22 2. Scope of protection The first observation to be made is the fact that the LPP in the CJ EU’s interpretation covers only written communication. This is manifestly narrower than the ECtHR’s understanding (see above), we must however not forget the context in which the CJ EU arrived to its conclusions. In the AM & S case, as well as in the subsequent ones, the court was reviewing the legality of Commission’s on-site inspections (dawn raids), during which it is allowed to examine the books and other records related to the business, irrespective of the medium on which they are stored, and to take or obtain in any form copies of or extracts from such books or records. 23 To the Commission, only the written communication was thus accessible and the undertaking under investigation might have claimed that it was privileged. Secondly, as has already been observed above, the privilege under the EU law is case- specific, whereas under the Convention, the ECtHR explained that “ the lawyer-client relationship is, in principle, privileged and correspondence in that context, whatever its purpose, concerns matters of private and confidential nature ”. 24 Even though the privilege is thus clearly narrower under the EU law, it is again due to the fact that the CJ EU formulated its 17 Ibid , par. 21. 18 For the sake of completeness, it ought to be mentioned that in her opinion in case C-550/07 P Akzo Nobel , ECLI:EU:C:2010:229, the last significant EU judgement on LPP, Advocate General Kokott referred to both the respect for communication (Article 7 of the Charter) and the right to defence (Articles 47 and 48 of the Charter) as the LPP’s legal basis. 19 In the CJ EU judgement 155/79 AM & S (sub 15), par. 22, the CJ EU stated that it is necessary to „ ensure that the rights of the defence may be exercised to the full, and the protection of the confidentiality of written communications between lawyer and client is an essential corollary to those rights “ . 20 Articles 47 (2) and 48 (2) of the Charter. 21 CJ EU judgement AM & S 155/79 (sub 15), par. 23. 22 NAZZINI, R. (sub 7), p. 184. 23 Art. 20 (2) (b) and (c) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty. 24 ECtHR judgement of 20 June 2000, app. no. 33274/96 Foxley v. United Kingdom , par. 43.

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