Legal Professional Privilege in Competition Proceedings Before the European Commission: Beyond the Cursory Glance

Although set against the background of investigations by the European Commission in proceedings for the application of the main competition rules of the EU, the discussion remains at the level of broad principles. The driving notion of this article is that the basis and ratio for judicial recognition of a privileged communications doctrine in EU law must be defined explicitly, and that this definition may have important consequences as to the scope and practical administrability of the doctrine. Part I explores the principal rationales usually claimed for the privilege: the utilitarian view and the rights-based approach. This discussion serves as useful background to understand the position of EU law regarding operation of the privilege in competition proceedings conducted by the Commission. Part II describes the state of the law since AM&S, commenting on the personal and material scope of the current privilege rule, the possible reasons underlying its strict conditions, and the procedural arrangements for resolving privilege disputes. It then considers whether changes in the legal context since AM&S have eroded the foundations of this judgment