CYIL vol. 10 (2019)

MICHAL PETR CYIL 10 ȍ2019Ȏ ultimately decide whether it is covered by the LPP or not. 50 Only when the claims made by the undertakings in question are clearly insufficient or irrelevant may the Commission read the documents immediately. 51 If the LPP claimed was misused by the undertaking in question, i.e. when the documents were in fact not covered by the LPP, the Commission may impose upon it a procedural fine up to 1% of its annual turnover. 52 Such a procedure is arguably in line with the ECtHR’s requirements 53 and we can find no reason for its further modification. Finally, as the privilege is the prerogative of the client, not the lawyer, 54 nothing prevents the undertakings concerned from disclosing the content of a privileged document if they consider it to be in their interest. 55 5. The Damages Directive As far as written EU competition law is concerned, the term legal professional privilege is only used in the Damages Directive, 56 even though it does not define it. The directive only obliges the Member States to ensure that national courts give full effect to applicable legal professional privilege under Union or national law when ordering the disclosure of evidence. 57 The reference to both the EU and national LPP regulation probably means that those states in which the scope of LPP protection is broader than in the EU law, in particular Ireland and the United Kingdom, may retain their regulation. 58 IV. LPP in other areas of EU law The term legal professional privilege in not employed in other areas of EU law, 59 the protection of communication between lawyers and their clients is however sometimes mentioned, and occasionally even limited. 60 As is clear from the ECtHR’s case-law, it has mostly decided on the LPP in the context of criminal proceedings. Even though criminal law is not characteristic for the EU law, it is occasionally concerned with it as well, in particular in relation to the European Arrest 50 Ibid , par. 83. 51 FAUL, J., NIKPAY, A. (sub 28), p. 1151. 56 Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union. 57 Damages Directive, Art. 5 (6). 58 To the same conclusion, see NAZZINI, R. (sub 7), p. 186. 59 It is explicitly mentioned only in recital 63 of the Regulation (EC) 1060/2009 of the European Parliament and of the Council on credit rating agencies, it nonetheless only refers to national legislation. 60 This is the case of e.g. the anti money-laundering directives, which oblige the independent members of professions providing legal advice which are legally recognised and controlled to report suspicious activities of their clients; see Directive (EU) 2015/849 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, amending Regulation (EU) No 648/2012 of the European Parliament and of the Council, and repealing Directive 2005/60/EC of the European Parliament and of the Council and Commission Directive 2006/70/EC, recital 9 and Art. 33 and 34. 52 Regulation 1/2003, Art. 23 (1). 53 ANDREANGELI, A. (34) p. 112. 54 VAN BAEL, I. (sub 39), p. 156 55 CJ EU judgement 155/79 AM & S (sub 15), par. 28.

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