Proposals for Legal Professional Privilege in EU Competition Investigations

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The main reasons why the importance of Legal Professional Privilege (‘LPP’) has been emphasised in present times are as follows: protection of confidentiality is considered to be closely related to the rights of defence of the undertaking and administrative due process. The protection of LPP is also beneficial not only to a privilege holder but also to the general public and the competition authorities. LPP in EU competition investigations has to evolve, because EU competition enforcement has been affected by the rapidly changing world. Even the European Courts have been forced towards the gradual broadening of the scope of LPP accordingly. However, even these efforts do not keep pace with the developments in the modern society. The general trend has been towards a gradual harmonisation of competition laws and the treatment of LPP in competition law should not be excluded. In some jurisdictions, it is protected as a fundamental right, but in others, a client’s right legitimately protecting confidentiality over communications with a lawyer does not exist. The protection of LPP is actually dependent on the laws or customs of each country and culture. However, I believe that gradual global harmonisation of LPP is not impossible, and that LPP in EU investigations is capable of becoming a global standard with substantial amendments to the current scope. In particular, it is necessary to broaden the current scope, taking into consideration various problems actually found in and outside the EU. In my contribution, I would like to make specific proposals for these amendments.