COMPETITION • EUROPEAN LAW • PROCEDURE
Professional secrecy is expressly protected by Article 28 of Regulation No 1/2003. The term covers information which fulfills several cumulative conditions:
– it is less than five years old (unless the undertaking establishes that older parts are still essential elements of its commercial policy),
– it is only known to a limited number of persons,
– disclosure is likely to cause serious harm to the person having provided it or to third parties,
– the interests likely to be harmed by their disclosure are objectively worthy of protection.
The regulation prohibits, on the one hand, the use of information covered by professional secrecy for a purpose other than that for which it was sought and, on the other hand, the communication of information that is confidential in nature. This obligation of secrecy, which has its legal basis in Article 339 TFEU, applies to Union officials, the Commission and the competent authorities of the Member States and their officials and servants. It covers both confidential information and business secrets.
Some information is confidential due to the origin of its source. Such is the case of written communications between lawyer and client, provided that it is exchanged for the purposes and in the interests of the client’s rights of defense and it emanates from a lawyer that is structurally, hierarchically and functionally independent. This protection (legal privilege) stems from the fundamental right for any person to have the possibility to freely consult with his/her lawyer. Insofar as the confidentiality of this type of communication complies with legal principles and concepts common to the Member States, it is a general principle of EU law. Protection of the principle of confidentiality covers both written communications exchanged after the initiation of the administrative procedure which may lead to a decision on the application of Articles 101 and 102 TFEU or to a decision imposing a pecuniary sanction on the undertaking, and written communications exchanged before the initiation of the administrative procedure. The mere fact that a document has been discussed with a lawyer is not sufficient, however, to give it the benefit of protection, which is reserved only for the documents stating the necessity or appropriateness of seeking legal advice on the conduct examined or on any follow-up action to be taken, e.g. an application for leniency. The protection also concerns internal memoranda which merely repeat the wording of correspondence for circulation within the undertaking and submission to managers for their thoughts. By contrast, internal memoranda from the undertaking’s in-house lawyers or exchanges within an undertaking with in-house lawyers – even if they are members of the bar – bound by a relationship of employment to it are not covered by confidentiality.