EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

3.6 Preservation the rights of the defence. The rights of defence of those subject to investigation should always be preserved. The investigated entity shall retain the right to consult an external legal adviser on the procedure of the intervening competition authority. The undertaking may consult an external legal adviser during the inspection. The actual presence of an external legal adviser is not a mandatory condition for the legality of the inspection itself. Authorised persons of a competition authority may enter a competitor’s business premises and initiate their own inspection without waiting for the presence of the legal representative of the entity under investigation. Waiting for a lawyer can be if it takes an unusually long time, as it prevents the inspection from being carried out. A big topic is the question of who is an external legal adviser, how a legal private privilege can be defined. This issue was addressed by the CJEU in the cases of Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd v Commission : “The Court of Justice has held that where an undertaking which is the subject of an investigation pursuant to Article 14 of Regulation No 17 and which invokes the protection of the confidentiality of communications between: lawyers and clients refusing to produce, among the business records requested by the Commission, correspondence exchanged with his lawyer, is in any event required to provide Commission officials with useful information capable of demonstrating that those records satisfy the conditions justifying their legal protection, without revealing the content of the documents in question. The Court has stated that, if the Commission considers that such evidence has not been adduced, it may, on the basis of Article 14(1) of the Sixth Amendment, take the form of such evidence. 1 of the Ecclesiastical Code to order that such evidence not be presented. Pursuant to Article 3(3). In accordance with Article 3(3) of Regulation No 17, the production of the correspondence in question and, where appropriate, the imposition of a fine or periodic penalty payment on an undertaking under that regulation in order to punish that undertaking for refusing to adduce additional evidence which the Commission considered necessary or to produce documents which the Commission did not consider to be of a confidential nature protected by law ( AM & S v Commission , paragraphs 29 to 31). An undertaking under investigation may also bring an action for annulment of such a Commission decision and, if necessary, attach to it an application for interim measures under Articles 242 EC and 243 EC (see, to that effect, AM & S , paragraph 32). … ‘The purpose of that protection is, first, to protect the public interest in the sound administration of justice, which consists in ensuring that every client is free to have recourse to his lawyer without having to fear that the confidential information which he has communicated may subsequently be disclosed.” (Judgment of the

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