Chapter 4: Protection Against Forced Disclosure of ‘Sensitive Evidence’: The Legal Professional Privilege and the Privilege Against Self-incrimination in EC Competition Investigations and Procedure
INTRODUCTION The previous chapter examined the extent to which EC law confers on the undertakings being investigated by the Commission for suspected breaches of competition law the right to have access to the evidence gathered in the course of the investigations, and assessed it in the light of the principles enshrined in Article 6(1) ECHR and applicable to administrative procedures having a ‘civil’ or ‘criminal’ nature. In the course of the examination, it emerged that although this right is inspired by the principle of ‘equality of arms’, it may be limited in order to safeguard the legitimate interests of third parties or of the investigated parties themselves to the protection of their ‘commercially sensitive’ information. The demands of fairness of the Commission proceedings may also require that information be protected against forced disclosure to the competition officials in other circumstances: such is the case with communications between the investigated undertakings and their legal advisers and with information which may be incriminating. This chapter will examine the extent to which, respectively, EC law and the European Convention on Human Rights protect the confidentiality of lawyer–client correspondence and the privilege against self-incrimination. Thereafter, it will assess whether the Community legal standards comply with the Convention requirements as regards these two safeguards. 92 Protection against forced disclosure of ‘sensitive evidence’ 93 1. 1.1. THE CONFIDENTIAL TREATMENT OF LAWYER–CLIENT CORRESPONDENCE IN EC LAW Introductory Remarks The concept of legal professional privilege (hereinafter referred to also as LPP) in EC law has...
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