CYIL vol. 10 (2019)

MICHAL PETR CYIL 10 ȍ2019Ȏ conclusions for the purposes of on-site inspections, in which is the Commission only allowed to inspect documents within the scope of investigation, indicated in the decision authorising the searches. 25 At the same time, the LPP under the EU law covers also documents that would be difficult to subsume under the heading of “correspondence”. It covers not only the actual communication, but also its reporting within the undertaking that received a privileged legal advice; as the General Court reported in Hilti : “ legal advice was reported on in internal notes distributed within the undertaking so that it might be the subject of consideration by managerial staff. In such a case, and although the aforesaid legal advice was not received by way of correspondence, it must be held that the principle of the protection of written communications between lawyer and client may not be frustrated on the sole ground that the content of those communications and of that legal advice was reported in documents internal to the undertaking. Thus the principle of the protection of written communications between lawyer and client must, in view of its purpose, be regarded as extending also to the internal notes which are confined to reporting the text or the content of those communications ”. 26 In addition to that, the LPP covers also documents drawn up exclusively for the purpose of seeking legal advice from a lawyer in exercise of the rights of the defence, even if they were not actually sent to the lawyer or even not created for the purpose of being sent physically to a lawyer. The CJ EU concluded in Akzo Nobel Chemicals and Akcros Chemicals that internal notes prepared for the purposes of a conference call with a lawyer may be covered by the LPP: “However, so that a person may be able effectively to consult a lawyer without constraint, […] it may be necessary […] for the client to prepare working documents or summaries, in particular as a means of gathering information which will be useful, or essential, to that lawyer for an understanding of the context, nature and scope of the facts for which his assistance is sought. […] Accordingly, the Court concludes that such preparatory documents, even if they were not exchanged with a lawyer or were not created for the purpose of being sent physically to a lawyer, may none the less be covered by LPP, provided that they were drawn up exclusively for the purpose of seeking legal advice from a lawyer in exercise of the rights of the defence . On the other hand, the mere fact that a document has been discussed with a lawyer is not sufficient to give it such protection”. 27 Conversely, pre-existing documents attached to the request for advice are not covered by the privilege. 28

25 CJ EU judgement of 17 October 1989 85/87 Dow Benelux NV v Commission of the European Communities , ECLI:EU:C:1989:379, par. 17. 26 General Court order of 4 April 1990 T-30/89 Hilti Aktiengesellschaft v Commission of the European Communities , ECLI:EU:T:1990:27, par. 18. 27 General Court judgement of 17 September 2007 T-125/03 and T-253/03 Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd v Commission of the European Communities , ECLI:EU:T:2007:287, par. 122 and 123. 28 FAUL, J., NIKPAY, A. The EU Law of Competition. Third Edition. Oxford University Press, 2014, p. 1148.

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