Keeping your documents where you want them
Preventing regulatory authorities and potential claimants from accessing and relying on documents can help to snuff out investigations and legal proceedings before they get going. Knowing what information will be subject to disclosure to whom, and how to minimise the likelihood that sensitive information will be disclosed, should form a central plank of any company’s antitrust risk management and compliance strategy. Equally, as a complainant, claimant, or simply interested customer or competitor, you need to know what you can ask for, and what you should get, in terms of access to documents.
The most effective shield for sensitive documents is legal privilege. If documents are privileged, the European Commission is not entitled to see them and they cannot be relied upon in litigation. However, in EU investigations (as distinct from investigations under the national laws of some Member States), legal advice from in-house counsel does not benefit from privilege protection. The reason given by the Commission and the EU Courts for restricting the protection of confidentiality to external lawyers is that they have an overriding duty to collaborate with the courts in the administration of justice and are therefore accepted as genuinely independent. This duty is compromised by a relationship of employment such that the EU Courts are unwilling to extend the protection to in-house lawyers.
In order to benefit from privilege, the external lawyer must in all cases be qualified to practise in the EU. Advice from external US lawyers who are not also qualified to practise in the EU will not be privileged. Advice given by EU qualified in-house lawyers based outside the EU which can be accessed from the EU will not be privileged, even where such advice would be privileged in the jurisdiction in which it is given. If the advice is accessible from servers in the EU, the Commission can demand copies. Advice from lawyers whose position with companies is either as ‘consultant’ or who are ‘of counsel’ will not be privileged if they are not EU qualified. If they are EU qualified, the key issue identified by the EU Courts is whether they are employees, in which case they cannot be considered to be truly independent and their advice will not be privileged.