CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ LEGAL PROFESSIONAL PRIVILEGE IN INTERNATIONAL, EUROPEAN AND CZECH LAW be protected in course of the proceedings of the Czech Competition Authority (hereinafter referred to as “CCA”). The first (and only) case where this issue arose was a cartel agreement between two retailers of groceries products. During an on-site inspection, the CCA’s officials seized certain e-mail in respect to which the undertaking subsequently, when the inspection had already been finished, claimed that it contained information protected by LPP; thereafter, the CCA returned the documents in question contained. The Supreme Administrative Court of the Czech Republic (hereinafter referred to as “SAC”) concurred that even though not expressly contained in Czech legislation, the right to defence, that includes protection of the lawyer – client communication, needs to be applied in administrative law proceeding and that the LPP should be protected in the same extent under the Czech competition law as under the EU one. Concerning the potential infringement of this principle, the SAC stated that “the mere fact that an administrative authority got acquainted with the content of the lawyer – client communication and that it seized such communication (and later returned it, without taking its content into account in the decision on the merits) […], is not sufficient to conclude that the right to defence was breached. […] At the same time, the breach of the right to defence by getting acquainted with the lawyer – client communication may have various intensity, sometimes amounting only to an insignificant procedural error without effects on the legality of the proceedings […]”. 77 This interpretation seems to be more lenient than the conclusions of the CJ EU and ECtHR, it however needs to be taken into account that the undertaking raised the objection of LPP-breach only subsequently, after the inspection had been finished, and did not challenge the seizure of the documents in question when they were found. Arguably, the SAC’s conclusions are case-specific and do not constitute a general principal. In any event, even though the LPP is to be protected in Czech administrative proceedings, the Czech legislation lacks any procedure for ascertaining whether certain document is indeed privileged and the courts have not yet decided on this topic. 78 That is a serious problem as the ECtHR expressly requires that national laws provide for such procedures. A final remark needs to be made with respect to competition law; as we have discussed above, the Damages Directive requires the protection of LPP in course of disclosure of evidence. This provision of the Damages Directive is arguably inadequately implemented in the Czech Republic. 79 The confusion starts in the Czech version of the Damages Directive, which does not employ the term “legal professional privilege”, but “professional obligation of secrecy” (in Czech: “ profesní povinnost mlčenlivosti ”), 80 which is, as we have discussed in Chapter I, 77 SAC judgment of 29 May 2009, Ref. No. 5 Afs 95/2007. These conclusions were ultimately approved by the CC in its decision of 23 January 2014, Ref. No. III. ÚS 2461/12. 78 For more details, see PLACHÝ, J. Legal professional privilege jako institut ochrany důvěrné komunikace . [Legal professional privilege as an institute of confidential communication protection] Bulletin advokacie , 2013 (5), p. 35. 79 In detail, see PETR, M. Zákon o náhradě škody v oblasti hospodářské soutěže . [Act on compensation damage in the area competition] ANTITRUST, 2017 (1), p. 4. 80 Intriguingly, the Slovak language version of the same provision retains the diction of professional privilege (in Slovak: výsada právnických povolaní ).

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