CYIL vol. 10 (2019)

MICHAL PETR CYIL 10 ȍ2019Ȏ a conceptually different institute of law. This terminology is then adopted by the legislation transposing the Damages Directive, that requires respect for lawyers’ secrecy. 81 We believe that the Czech legislation needs to be amended in this regard in order to cover the LPP, as understood by EU competition law. VI. Conclusions Even though the ECtHR‘s, CJ EU‘s as well as Czech jurisprudence agree that legal professional privilege is to be guaranteed, the level of protection varies widely among them. The Convention and the ECtHR’s jurisprudence provide for comprehensive and broad protection, it nonetheless lacks any details on the required procedure of protection. As far as the EU law is concerned, the LPP is covered in detail only for the purposes of antitrust proceedings, specifically on-site inspections carried out by the Commission; thus, its scope is rather limited and in some details arguably not sufficient from the ECtHR’s point of view, in particular as regards the fact that communication with in-house councils and non-EU lawyers is universally excluded from the privilege. On the other hand, the EU competition law developed a comprehensive review procedure. Regrettably, the regulation is fragmented and arguably insufficient in other areas of EU law. As far as the Czech legal order is concerned, both the Constitutional Court and the Supreme Administrative Court argue that as a general principal, the LPP needs to be protected, the legislation and jurisprudence on its protection is nonetheless only rudimentary. Thus, the Criminal Procedure Code covers only certain aspects of the privilege and the administrative law is completely silent. We strongly recommend that the protection of LPP is enshrined in Czech law, in its scope based on the ECtHR’s jurisprudence and in the procedure of its review based on the EU competition law.

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81 Act No. 262/2017 Coll., Competition Damages Act, Sec. 14 (4).