CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ LEGAL PROFESSIONAL PRIVILEGE IN INTERNATIONAL, EUROPEAN AND CZECH LAW First of all, the power to assess whether certain document is covered by the LPP rests primarily with the Commission 44 and the undertakings in question need to substantiate their claims; if the Commission takes a decision rejecting a request for protection of a specific document under LPP, such decision is capable of being challenged by an action for annulment, coupled, if need be, with a request for interim relief, 45 even where no decision is formally adopted: “where the Commission, during an investigation, seizes a document in respect of which LPP is claimed and places it on the investigation file […] without having taken a formal rejection decision, that physical act necessarily entails a tacit decision by the Commission to reject the protection claimed by the undertaking […]. That tacit decision should therefore be open to challenge by an action for annulment”. 46 As has already been observed, the undertaking under investigation is obliged to provide the Commission officials with relevant material which demonstrates that the communication fulfils the conditions for granting the LPP protection, while not being bound to disclose the contents of the document; 47 as a matter of principle, a mere cursory look by the Commission officials at the general layout, heading, title or other superficial features of the document may then enable the officials to confirm the accuracy of the reasons invoked by the undertaking and to determine whether the document at issue is indeed privileged. Nonetheless, under some circumstance, even the “cursory look” might be sufficient for the Commission officials to get acquainted with the actual information covered by the LPP; under such circumstances, production of the document in question may be denied: “an undertaking subject to an investigation […] is entitled to refuse to allow the Commission officials to take even a cursory look at one or more specific documents which it claims to be covered by LPP, provided that the undertaking considers that such a cursory look is impossible without revealing the content of those documents and that it gives the Commission officials appropriate reasons for its view”. 48 Under such conditions, the Commission‘s officials are not allowed to read the document in question, as that would irreparably undermine the undertaking’s right of defence. 49 They are instead required to put the document into a sealed envelope and allow the undertaking to substantiate in detail the grounds for protection; if the Commission is persuaded by them, it will return the sealed envelope, otherwise it will adopt a decision rejecting the request for protection and allow the undertaking to challenge this decision before the General Court, which is empowered to assess the actual content of the document in question and thus

44 CJ EU judgement 155/79 AM & S (sub 15), par. 17. 45 General Court judgement T-125/03 and T-253/03 Akzo Nobel Chemicals and Akcros Chemicals (sub 27), par. 48.

46 Ibid , par. 49. 47 Ibid , par. 79. 48 Ibid , par. 82.

49 Ibid, par. 86: As the General Court emphasised: „ Having regard to the particular nature of the principle of LPP, the purpose of which is both to guarantee the full exercise of individuals’ rights of defence and to safeguard the requirement that any person must be able, without constraint, to consult his lawyer […], the Court considers that the fact that the Commission reads the content of a confidential document is in itself a breach of this principle. […] [T]he protection of LPP therefore goes beyond the requirement that information provided by an undertaking to its lawyer or the content of the advice given by that lawyer cannot be used against it in a decision which penalises a breach of the competition rules “.

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