On what grounds can legal privilege be invoked to withhold the production of certain documents in the context of a request by the relevant authorities?
According to recent Dow Turkey (15-42/690-259, 02.12.2015) and Enerjisa (16-42/686-314, 06.12.2016), the attorney-client protection covers the correspondences made in relation to the client’s right of defence and documents prepared in the scope of an independent attorney’s legal service. Correspondences that are not directly related to use of the client’s right of defence and that aim to facilitate/conceal a violation are not protected, even when they are related to a preliminary investigation, investigation or inspection process. For example, while an independent attorney’s legal opinion on whether an agreement violates the Competition Law can be protected under the attorney-client privilege, the correspondences on how the Competition Law can be violated between an independent attorney and client do not fall within the scope of this privilege. On a final note, correspondences with an independent attorney (i.e. without an employment relationship with her/his client) fall into the scope of attorney-client privilege and shall be protected.
Information or documents subject to legal professional privilege do not need to be disclosed to the ACCC under a s155 notice or search warrant.
Broadly, in Australia, legal professional privilege applies to confidential communications between a client and a lawyer (generally including in-house counsel and lawyers qualified outside the jurisdiction), and in some circumstances, a client or its lawyer and a third party, and confidential documents, where the communication is made or the document was prepared for the dominant purpose of the client being provided with or obtaining legal advice, or use in existing or anticipated litigation.
Mexican law does not have a general concept of privilege as it may be available in other jurisdictions. Having said that, the ability of the agencies to impose antitrust liability is subject, mutatis mutandi, to the general principles of criminal law which, among other, include the right against self-incrimination, presumption of innocence and the right to an adequate defence by counsel. Along the same lines, Mexican law prohibits prosecutorial bodies to access private communications unless such access is authorized by a court order. Also, under Mexican law, independent external counsel is subject to a duty of secrecy with respect to information obtained or prepared in the course of their engagement. Taking these elements into consideration, isolated court precedents have ordered the exclusion from the review of the agencies documents prepared by counsel.
Finally, certain information may be subject to banking, securities, or tax secrecy obligations, for the production of which a court order is required.
Thus, only under these grounds could requested parties withhold the production of information required by the agencies. A much more difficult task would be to have the agencies exclude documents or information gathered in the course of dawn-raids or from other sources which falls within these categories.
In Brazil, professional secrecy in the context of attorney-client privilege, whether in-house or external lawyer, is ensured by the legislation. Law No. 8.906/1994 establishes as a right of the lawyer "the inviolability of his office or place of work, as well as his instruments of work, his written, electronic, telephone and telematics correspondence, as long as related to the practice of law." In addition, breach of professional secrecy is also a crime provided by the Brazilian Criminal Code.
Therefore, there are legal grounds for refusing to produce certain types of evidence requested or determined by the authorities, such as legal advice made by in-house or external lawyers, since they relate to the practice of law.
Article 38(3) of the Competition Act lays down the rights of an undertaking to the confidentiality of its correspondence with external legal counsel (legal professional privilege) regardless of the jurisdiction they are qualified in. Following the ECJ case law, legal advice produced by in-house counsel is not protected by the legal professional privilege.
A person is entitled to invoke solicitor-client privilege over documents seized in the context of the execution of a search warrant or required by an information request. Section 19 of the Act provides the procedure to be followed when there is a solicitor-client privilege claim. Legal advice produced by in-house counsel and by lawyers qualified outside the jurisdiction is generally protected by solicitor-client privilege, but the determination will be fact dependent. Moreover, in the context of criminal charges, the court has found that the factual information discovered as part of internal investigations and communicated to the Bureau in the context of an immunity or leniency application is not protected by either solicitor-client or settlement privilege, when the parties claiming such privilege cannot identify any harm that would be caused by the disclosure (see R v Nestlé, 2015 ONSC 810).
Other applicable privileges include litigation privilege (where the records in question were prepared primarily for the purpose of actual or anticipated litigation) and settlement privilege.
The investigated party has a duty to cooperate with the AMEA, unless the AMEA have procedural defects in the investigation process, such as less than two law enforcement officers are presented, or the law enforcement officer cannot verify his identity. In addition, the investigated party may require registering and copying documents obtained by the AMEA. For some documents that are not suitable for submission, they have the right to submit legitimate copies or request the AMEA to return the pieces when necessary.
Confidential communications by a client to and from an attorney for the purpose of obtaining legal advice are subject to attorney-client privilege. This includes communications by business people to and from in-house counsel. In most US jurisdictions, the privilege will attach to communications with foreign attorneys if the advice involves US law or relates to a US proceeding. If not, the foreign country’s privilege rules will be in control, which may be less protective of privilege.
In Japan, there is no attorney-client privilege. Therefore, email communications, legal advice and other correspondence between the subject party and its legal counsel (external or in-house) may be subject to seizure by the JFTC. As explained in further detail below, the introduction of a system where documents created by legal counsel will be subject to privilege under certain conditions is currently pending.
Legal privilege protects communications between a solicitor and his client that have been created for the purpose of obtaining legal advice and/or in connection with existing or contemplated litigation. The MyCC cannot require a person to produce documents that benefit from such legal privilege. The legal privilege is expressly provided for in Section 22 of the CA. However, the phrase advocate and solicitor is not defined in the CA and hence, such interpretation may be taken from the Interpretation Acts 1948 and 1967 (‘IA’) where advocate is defined as a person entitled to practise as an advocate or as an advocate and solicitor under the law in force in any part of Malaysia. Based on the literal reading of the definition under the IA read together with Section 22 of the CA, legal privilege does not apply to communications between an in-house counsel and his or her employer and it is unclear whether communications between practising Malaysian advocate and solicitor and foreign lawyers (practising lawyers and internal legal advisors) (‘Foreign Lawyers’) is privileged. However, there is a case in which the High Court judge ruled that legal privilege should be attached to communications between in-house legal counsel and his or her employer as well as communications between practising Malaysian advocate and solicitor and Foreign Lawyers.
The legal privilege applies only with regard to lawyers who are entitled to represent the person before Swiss courts in accordance with the Law on Lawyers. This excludes in-house counsels, who cannot invoke the legal privilege and professional confidentiality. Objects and documents containing legally privileged information may not be confiscated and do not require production, provided the lawyer himself is not accused of the same conduct. It is irrelevant, where the documents are situated (in the possession of the undertaking or the lawyer).
As abovementioned, the Competition Commissioner's authority to demand the provision of documents, whether by a criminal investigation or by means of a civil inquiry, is very broad. The only exception to the above obligation of provision of documents, is statutory privileges specified in the Evidence Ordinance [New Version], 5731-1971, including attorney-client privilege, etc. Relative privileges, such as trade secrets, do not allow to prevent from the provision of documents to the Competition Authority.
Apparently, counsel given to a company by an attorney (whether if the attorney is an internal consultant or an outside consultant) is protected by the attorney-client privilege, and the Competition Authority is not authorized to demand review of the content of the documents or information under this privilege.
The privilege of communication between client and external lawyer may be invoked in the context of an investigation by the Spanish competition authorities. The grounds are that only those powers expressly conferred in the abovementioned legal provisions may interfere with the rights of the investigated parties proclaimed in Article 18 of the Spanish Constitution, which guarantees respect for the home and communications, and that the exercise of such powers may not affect other fundamental rights. Therefore, given that the legal privilege stems from the fundamental right of defence under Article 24(2) of the Spanish Constitution, it may not be impaired by the exercise of the investigative powers vested in competition authorities.
Nonetheless, the practice of the CNMC is to recognise legal privilege only in relation to communications with external counsel, while exercising its powers in relation to documents produced or exchanged with internal lawyers (see, for instance, decision of the Board of the CNMC in case R/AJ/060/17  Altadis 2). That practice is based on the case law of the CJEU (see judgment of 14 September 2010, C‑550/07 P, Akzo Nobel Chemicals and Akcros Chemicals v Commission, and of 18 May 1992, 155/79, AM & S Europe v Commission). On the contrary, in principle no distinction is made in relation to external lawyers qualified outside Spain. Furthermore, it is to be noted that the Spanish Supreme Court interprets legal privilege as a right that must be actively exercised by the parties by showing that the specific communications are protected (see appeal 6552/2009  STANPA, legal ground 2), and thus by identifying protected documents.
According to article 38 paragraph (8) of the Competition Law only correspondence with outside counsel that is related to the object of the investigation is subject to protection under legal privilege. If in doubt or a dispute arises between the inspectors running the unannounced inspection and the party under investigation, such documents are placed in a sealed envelope and remitted to the President of the CC, who decides by way of an order. This order may be challenged in court.
The power to require the production of information under both Chapter I and the Enterprise Act is subject to legal privilege and also the privilege against self-incrimination.
In the UK, legal privilege broadly comprises two types of communications: (i) communications between a lawyer and client made for the purpose of seeking or giving legal advice; and (ii) communications between lawyers and clients, or communications between a lawyer or client and a third party, for the dominant purpose of being used in connection with actual or pending litigation. In the UK, external and in-house lawyers are treated equally for these purposes.
EU legal professional privilege (LPP) covers written communications between independent EEA-qualified lawyers and their client made for the purposes and in the interests of the client’s rights of defence in the context of a competition investigation (even if the exchange occurred before the initiation of the proceedings). The Commission does not consider that advice provided by in-house legal counsel and/or non-EEA-qualified counsel is protected by LPP (further to Case C-550/07 P Akzo Nobel). However, where an investigation is carried out by an NCA (even if under Article 101) national rules of privilege apply and, in certain cases (e.g. English rules of legal privilege), these may be broader in scope.
Decree No. 480/2018 provides in Section 13 that a party may request the confidentiality of the information submitted in a proceeding when its disclosure may cause damage to that party’s interest. Although this provision is primarily applicable to the merger review process, the enforcement authority may apply it within claims or investigations carried out by the Antitrust Commission in order to safeguard commercial secrets of the involved parties.
When a private claim is filed before the courts and the opinion of the Antitrust Commission is used, it should not contain sensitive information, and parties can request confidentiality if any trade secret or other confidential information is disclosed in the opinion. In this sense, the request should be reasoned and a non-confidential version of the submitted information should be involved. Likewise, all the dockets pending before the Antitrust Commission are secret, and only the parties can access them.
Finally, and pursuant to Section 6 of Law No. 23,187, it is a specific obligation of lawyers to preserve the attorney–client privilege unless otherwise authorised by the interested party (i.e., the client). Likewise, Section 7 provides that it is a right of the lawyers to keep confidential information protected under attorney–client privilege. Furthermore, Section 444 of the Civil and Commercial Procedural Code provides that a witness may refuse to answer a question if such answer would entail revealing information protected under a professional secret (i.e., including attorney–client privilege).
The legal privilege principle applies to both internal and external counsel under Norwegian law. However, when the ESA investigates on the basis of EEA law, the legal privilege does not extend to communication with in-house counsel.
During an unannounced inspection, electronic material will normally be seized without separating documents protected by legal privilege. The undertaking will be given the opportunity to identify legal privileged documents at a later stage, in advance of the Authorities' access to the seized material. Physical documents which are protected by legal privilege will normally not be seized.
Any dispute regarding whether a document is legally privileged, shall be tried before a court of law, and the document or device in question will remain sealed until the matter has been resolved.
It is not disputed that communications between external counsel and a client is covered by legal privilege.
Article 5 of the law of 1 March 2000 (Wet tot oprichting van een Instituut voor bedrijfsjuristen) states that all legal opinions given by in-house lawyers for the benefit of their company are confidential. It is required, however, that the company lawyer in question is a registered member of the Institute of corporate counsel. This has been confirmed by the Brussels Court of Appeal in the Belgacom case of 5 March 2013. The Court explicitly rejected the application of the Akzo Nobel ruling of the CJEU and stated that the CJEU only determined the confidentially rules on European level without precluding national authorities from applying different rules in Member States.
As a consequence, the scope of legal privilege will differ depending on the legal basis for the surprise inspection. If the BCA assists the European Commission in a surprise inspection, then the BCA will not be prevented from looking at in-house counsel communications with their client as legal privilege for in-house counsel does not exist for European Commission surprise inspections. However, the same BCA officials will not be allowed to review communications from the same in-house counsel with its client if that in-house counsel is a registered member of the Institute of corporate counsel and the surprise inspections is based on Belgian competition law.
For external legal counsel, based on the European practice, legal professional privilege is limited to EU-qualified lawyers, although in practice legal privilege would also be granted to non-EU qualified lawyers. The Belgian law does not have different rules governing this.
According to the EU legislation, as interpreted by the CJEU, the legal professional privilege with respect to communications between lawyers and their clients is a fundamental legal right, the benefit of which is subject to two cumulative conditions. First, the exchange with the lawyers must be connected to the client’s rights of defence and, second, the exchange must emanate from independent lawyers, that is to say, lawyers who are not bound to the client by a relationship of employment. Nonetheless, according to the Greek legal doctrine and the established case law, the legal privilege extends to in-house lawyers to the same extend that it applies to independent lawyers.
The following documents are covered by legal privilege under Indian law:
(a) written communications regarding legal advice between external lawyers and in-house counsel or employees in relation to a company’s legal rights and obligations, whether or not litigation is pending or contemplated;
(b) written communications (including material from third parties) provided to external lawyers by in-house counsel or company employees for litigation advice;
(c) documents brought into existence by in-house counsel for enabling external lawyers to advise on prospects of making or resisting a claim, even if litigation has not commenced or not imminent but is reasonably in prospect; and
(d) information (by a third party such as a surveyor) called into existence by external lawyers for any pending/ anticipated dispute.
The law on whether the legally privileged documents can be withheld from being produced to the CCI/DG is not clear. A potential interpretation is that legal privilege only prohibits the documents from being used by the CCI/DG, and not the production of the same to the CCI/DG.
Indian law generally only recognises privilege for external legal advice provided by lawyers qualified to practise in India. Legal privilege does not extend to in-house counsel, foreign lawyers, as well as non-lawyers such as accountants and auditors.
Legal privilege applies to communication and documentation to and from members of the Swedish Bar Association and other bar associations or law societies and their associates. Legal privilege also covers documents which have been given to a lawyer in confidence within the scope of his or her professional duties. Legal privilege does not extend to the advice of in-house counsel.
The position of in-house legal advice and whether it is protected by privilege has been addressed by the Cyprus courts in cartel cases. The position would seem to be similar to that currently prevailing in the EU terrain - there is no privilege for in-house lawyers’ communications. However, also in compliance with the ECJ case law, the communication between an undertaking and external legal counsel, even if qualified outside jurisdiction, is always covered by the privilege of confidentiality.
The Concept of “Legal Privilege” and its applicability before the UAE Courts (Mainland Courts) as well as (DIFC Courts):
The UAE is a civil law country, and therefore, the concept of “legal privilege” is not explicitly recognized under the UAE Laws and Regulations as the case in most common law jurisdictions. However, the communications between an attorney/in house attorney from one side and the client from the other side are considered confidential and could be protected. The grounds for such protection and legal privilege doctrine arguably exists under different federal laws and regulations in the mainland of UAE which substantiate for i) protection, ii) eligibility to protect confidential information, and iii) claim damages for breach of confidentiality or publish undisclosed information protected via Non-disclosure agreement and/or undertaking. The laws as follows:
- The Advocacy Law (UAE Law No. 23 of 1991).
- The Code of Ethics (Minister of Justice Decree No. 666 of 2015).
- The Evidence Law (UAE Law No. 10 of 1992).
- The Civil Procedure Law (Federal Law No. 11 of 1992).
- The Civil Transactions Law (Federal Law No. 5 of 1985).
- The Penal Code (Federal Law No. 3 of 1987).
Article 42 of the Advocacy Law states that attorneys are obliged to keep confidential the communications made in maintenance of their professional representation of a client, unless such disclosure is required to prevent the perpetration of a crime. Further, the Code of Ethics states that confidential information shall be kept confidential regardless the nature of the representation. However, the confidential information can be disclosed in the following limited circumstances:
1. Written consent by the client or the rightful owner of the confidential information to its disclosure.
2. An express court order compelling the disclosure of the confidential information (only to the extent required by such court).
3. The attorney is accused of a crime or civil claim arising out of negligence or professional malpractice.
Therefore, the communications between an attorney and client are considered a confidential communication and shall not be disclosed except in the circumstances set out above. However, any party of any legal proceeding, according to Article 18 (1)(b) of the Evidence Law, has the right to file a petition with the Court to require the other party to disclose specific evidences which are related to the case. If the party from whom disclosure is sought does not deny the existence of the requested evidences but refuses to submit the same to the Competent Court or Authority, then the Court or Competent Authority may consider the requesting party's allegations as true concerning such documentation and would issue its decision based on this consideration according to Article 19(3) of the Evidence Law.
It is worth mentioning that although UAE is governed by a civil law system, it has established the Dubai International Financial Centre (“DIFC”) which operates according to a common-law system with its own laws, regulations, independent judicial authority and courts. DIFC is a special free zone established within the Emirate of Dubai territory and considered one of significant financial hubs globally. It follows common law system and has a specialized court that examines, rules and upholds judgments on disputes that fall within its jurisdiction. Therefore, the concept of Legal Privilege is upheld and relied on by the parties in the DIFC Courts, in accordance with provisions of the Rules of the DIFC Court, which defined “Privilege" as "the right of a party to refuse to disclose a document or to produce a document or to refuse to answer questions on the ground of some special interest recognized by law".
Furthermore, Article 28.28 of the Rules of the DIFC Court stated that the Court may, at the request of a party or on its own initiative, exclude from production any document for any of the following reasons: (1) Lack of sufficient relevance or materiality; (2) Legal impediment or privilege under the legal or ethical rules determined by the Court to be applicable; (3) Unreasonable burden to produce the requested evidence; (4) Loss or destruction of the document that has been reasonably shown to have occurred; (5) Grounds of commercial or technical confidentiality that the Court determines to be compelling; (6) Grounds of special political or institutional sensitivity (including evidence that has been classified as secret by a government or a public international institution) that the Court determines to be compelling; or (7) Considerations of procedural economy, proportionality, fairness or equality of the parties that the Court determines to be compelling.
The party who wishes to claim that he has the right or duty to withhold the production of a document or any part of documents must state such claim in writing and must indicate the grounds on which he claims that right or duty, according to Article (28.29) of the Rules of the DIFC Court. However, it is noteworthy to observe that there is no statutory provision in the DIFC to define a clear scope and limitation of legal privilege. Therefore, the DIFC Court judges have the discretion to make findings of legal privilege under the legal or ethical rules determined by the Court to be applicable.
In order for regime of the DIFC Court to be applied in relation to a case, corporate entities and individuals need to be based within the DIFC itself or to do business with entities located in the DIFC. Moreover, it is possible for UAE-domiciled entities to elect DIFC Court and Laws in respect of both their local and international contractual relationships.
The Applicability of the Concept “Legal Privilege” in respect of Competition Cases:
In light of the above, the applicability of the Concept “Legal Privilege” in relation to Competition Cases would depend on whether the cases related to competition would be reviewed by the Local Courts of Mainland of UAE or the DIFC Court, taking into account the following:
The provisions of UAE Competition Law provide for public and private enforcement.
Public enforcement is enforced by the Ministry of Economy and Minister of Economy who are vested with wide powers and use special procedures to investigate the anti-competition practices and complaints. Decisions of the Minister of Economy are subject to appeal before the Competent Courts in UAE, namely the First instance Federal Court, (The Competent Local Courts of Mainland of UAE). On another hand, the criminal cases for the anti-competition practices may commence solely by a written request pursued by the Minister or his authorized deputy and the same is filed before the competent public prosecution office (Article 26 of Competition Law). The Law also authorizes the Minister of Economy to reconcile any contravention of the Law before a criminal case is transferred to the Competent Court in return for a settlement amount equivalent to no less than double the minimum fine.
Private enforcement is available under Article 23/2 of the UAE Competition Law, which grants any party or entity who has suffered any damages due to a violation of any provision of the UAE Competition Law to claim for compensation from the Courts in UAE by stating “The penalties set out in this law shall not prejudice the right of the harmed party to have recourse to the Court to claim compensation for the damages arising from violating any provision of this law”. The wording of Article 23/2 of the UAE Competition Law is considered wide to include a reference to the Courts of the Mainland of UAE as well as the DIFC Courts as the said mentioned Article did not contain any mandatory wording to the effect of attributing exclusive jurisdiction to claim compensation to the UAE Competent Local Courts of Mainland of UAE, and consequently, there is nothing that prevent the aggrieved third party from bringing a legal action for claiming damages before DIFC Courts in case the regime of the DIFC Court is applicable on the subject case.