In-house lawyers and
legal privilege in competition law investigations
Paolo Palmigiano, Solicitor
Head of Competition Law, Group Legal
Lloyds Banking Group
CLA, 29 April 2013
Summary
 Introduction
 Key cases
 Why legal privilege for in-house lawyers matters
 Key challenges for in-house lawyers
Introduction
 Legal privilege and rules on discovery
 In Europe, rules about discovery, privilege and in-house
lawyers differ considerably
 UK : litigation privilege and legal advice privilege
 Italy (and civil law jurisdictions): duty of professional
confidentiality and roles in-house
 EU : legal privilege does not apply to in-house lawyers
Importance of LPP in competition law
 Competition authorities (Commission and NCAs) have wideranging powers to request information
 Formal requests for information
 Dawn raids
- Access to the premises
- Documents (electronic or not)
- Interviews
Key cases - 1
 AM & S Europe v Commission (case C155/79)
 Akzo – ECJ judgment of 14 September 2010 - facts
 In EU competition law investigations, in-house lawyers cannot benefit from
legal professional privilege, even if they are subject to national professional
rules. Their independence is compromised by the employment relationship
 Reasoning
 Lack of independence (notwithstanding professional rules and safeguards)
 There is no unequal treatment
 Different situation in various member states – no predominant trend
 Modernisation (and self-assessment) has not changed the role
 Right of defense and principle of legal certainty unaffected
 No violation of principle of national autonomy in procedural matters
Key cases - 2
 P.U.K.E. v Commission (6 Sept 2012)
 A party is not permitted to act itself but must use the service of a third
person authorised to practise before a court of a member state
 Only a lawyer authorised to practise before a court of a MS may represent
 Polish in-house lawyers are authorised to practise before Polish court
 However, Court finds they are not independent
 Statute of the Court imposes a necessary condition:
 A lawyer representing a party before European Court is entitled to
practise before a Member State court.
 That is not however a sufficient condition:
 Every lawyer entitled to practise before a court of a MS is not
automatically allowed to act before the Courts of the EU.
 Brussels Court of Appeal – (5 March 2013) (Dawn raid of Belgacom
by Belgian NCA)
Why in-house legal privilege matters - 1
 In-house lawyers admitted to the bar are bound by the
same professional and ethical rules (but perception
matters)
 Regulation 1/2003 imposes increasing responsibilities on
undertakings to perform self-assessment to comply with
competition law
 Incentives to comply with competition law have increased,
given the major legislative changes and the nature of
penalties (corporate and personal)
Why in-house legal privilege matters - 2
 Increased number of in-house competition lawyers
 Greater importance of their role and responsibilities
 In-house resource readily available to the business ex ante
(which fosters compliance)
 Key role in setting up corporate compliance programs
 In-house lawyers work closely with the business to ensure
compliance of commercial propositions
 In-house lawyers need to be able to follow-up on concerns
of potential breaches without fear of discovery
 Sending everything outside is not possible
Key challenges in-house
 Definition of an in-house lawyer
 Who is likely to investigate? UK? EU? Others?
 In UK, who is the client in a company?
 Business people do not understand privilege
 Fact-finding investigations and mock exercises
 Email v phone
 When to involve an external lawyer
MANY THANKS