The Dutch competition authority, the Authority Consumer and Market (“ACM”) has published new guidelines effective 12 February 2014. These guidelines are intended to regulate how the ACM operates in respect of legal professional privilege.
The new set of guidelines is called ACM Investigation Guidelines Legal Professional Privilege 2014(in Dutch: “ACM Werkwijze geheimhoudingsprivilege advocaat 2014”). It aims to clarify the guarantees for legal professional privilege (“LPP”), in the course of an ACM investigation. Key rules and safeguards here:
- The scope of application of the present guidelines is limited to correspondence with a qualified lawyer (in Dutch: “advocaat”), which the ACM0 discovers, broadly speaking, outside the offices of the lawyer.
- The ACM designates one or more of its civil servants as confidentiality officials. They operate independently from their colleagues, who are engaged in the investigation.
- If the ACM, during the course of an investigation, requests documents allegedly subject to LPP, (counsel for) the defendant may object. There are basically three potential outcomes: (a) the ACM summarily looks at the documents and accepts LPP; (b) the ACM summarily looks at the documents and does not accept LPP; or (c) there is an objection even to summary review. In the first case, the documents are set aside and disregarded.
- In the second and third case, the ACM is likely to put the documents in a closed envelope, after which the confidentiality officer is asked to review alleged LPP. The defendant has the right to submit written comments, which are to be taken into account, in assessing LPP. If the confidentiality officer finds (parts of) the documents are not subject to LPP, he must submit a reasoned decision. The defendant has a right to respond. If there is still no LPP in the view of the confidentiality officer, he will again submit a reasoned decision, and forward the documents to the ACM investigators after a period of 10 days lapses. This leaves room for an injunction or summary proceedings.
- All correspondence between (counsel for) the defendant and the confidentiality officer is privileged, may not be used in the course of ACM investigations, and must be destroyed after a designated period of time.
- Alternatively, the civil servants conducting the investigation may want to review the documents themselves, without involvement of the confidentiality officer. If that is the case, (counsel for) the defendant must be invited to partake in the review at ACM offices.
During a dawn raid or otherwise, (counsel for) the defendant must at all cost protect those documents that are subject to LPP, as they may contain information and advice critical to the legal position of the defendant. The present guidelines aim to strike a balance between this objective, and the interest of the ACM in pursuing its investigation.
The ACM takes as its point of departure that a claim must be made, in time, that the contentious documents are in fact subject to LPP (cf. European Court of Justice 18 May 1982, judgment in case 155/79 (AM&S)). However, in our view, this is not enough to invoke full use of LPP: (counsel for) the defendant should argue its case on the spot, taking into account e.g. the following factors (Court 17 September 2007,judgment in joined cases T-125/03 and T-253/03 (Akzo Nobel c.s.), European Commission roundup here, appeal here):
- Who authored the contentious document?
- Who were the addressees?
- What were the addressees’ functions and responsibilities at the time?
- What was the objective of the contentious document?
- What was the context at the time?
- Where has the document been filed?
The ACM has clarified, in response to consultation questions, that qualified lawyers who are employed by defendants (inhouse counsel) can also benefit from these LPP rules. We feel this is an important clarification, as it offers inhouse counsel the possibility, in principle, to advise their employer free of concerns that the ACM might use such advice against them, pursuant to an investigation.
Defendants who do not feel at ease with the rules and procedures set out in the new guidelines, e.g. the confidentiality officer review, can ask for an injunction or initiate summary proceedings. However, they should understand they will probably face an uphill battle explaining to court the new guidelines offers too little guarantees for their particular case.