CYIL vol. 10 (2019)

MICHAL PETR CYIL 10 ȍ2019Ȏ strategies pursued by his employer, and thereby affects his ability to exercise professional independence”. 36 This is arguably contrary to the jurisprudence of the ECtHR, which does not provide for any such exclusion and covers communication with all legal advisors, whether employed or not, provided they are subject to adequate standards of ethical integrity and independence. 37 It also needs to be mentioned that the EU jurisprudence grants the privilege only to lawyers “ entitled to practice [their] profession in one of the Member States ” 38 and the privilege has not yet been applied expressly to communication with lawyers qualified in third countries; 39 to that end, the Commission envisages the conclusion of bilateral treaties on the basis of reciprocity. 40 We put forward that the CJ EU’s case-law should be revisited in both these aspects. We can see no persuasive reason why the right of defence should be limited in a way which allows the clients to seek advice only from lawyers having their seat in the EU. In a similar vein of argument, we suggest that the status of lawyers is not judged solely on their membership in a bar, but rather on material assessment of their independence vis-à-vis their clients. 4. Procedure LPP documents are protected from being used in investigation , not merely in evidence ; this distinction is important because whereas under the latter approach, if the Commission seizes a privileged document, the interference may be remedied by not using it as evidence, according to the former, the right of defence is breached immediately when the Commission gets acquainted with its content; as the General Court puts it: “even if that [legally privileged] document is not used as evidence in a decision imposing a penalty under the competition rules, the undertaking may suffer harm which cannot be made good or can only be made good with great difficulty. Information covered by LPP might be used by the Commission, directly or indirectly, in order to obtain new information or new evidence without the undertaking in question always being able to identify or prevent such information or evidence from being used against it”. 41 Unlike the ECtHR, which only generally allows public authorities to check that the privilege is not abused, 42 even though it requires clear and precise rules to that effect, 43 the EU jurisprudence developed a comprehensive procedure how to deal with potentially fraudulent LPP claims. 36 CJ EU judgement C-550/07 P Akzo Nobel Chemicals and Akcros Chemicals (sub 31), para 47. 37 ANDREANGELI, A. (sub 34), p. 120; see also ECtHR judgement App. No. 15450/89 Cascado Coca v. Spain , par. 54. 38 CJ EU judgement 155/79 AM & S (sub 15), par. 25. 39 VAN BAEL, I. Due Process in EU Competition Proceedings . Wolters Kluwer, 2011, p. 153; reportedly, the Commission has in practice occasionally treated communication with lawyers from third countries as privileged as well, see FAUL, J., NIKPAY, A. (sub 28), p. 1148. 40 Thirteenth Report on Competition Policy (1984), accessible at: https://publications.europa.eu/en/publication- detail/-/publication/161bd425-29e6-4ac0-9b3d-0766ecdda8cd/language-en (accessed on 15 June 2019), par. 78. 41 General Court judgement T-125/03 and T-253/03 Akzo Nobel Chemicals and Akcros Chemicals (sub 27), par. 87. 42 ECtHR judgement Campbell v. the United Kingdom (sub 5), par. 48. 43 ECtHR judgement of 25 March 1998, app. no. 23224/94 Kopp v. Switzerland , par. 75.

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