Few issues in the field of competition law better illustrate the tension between national procedure autonomy and the application of European Union (“EU”) law by the European Commission (the “Commission”) than the question of Legal Professional Privilege (“LPP”). This tension is particularly evident in the context of inspections carried out by the Commission, where the applicable standard protecting lawyer–client communications may be less protective than those provided by the laws of certain Member States.

Neither Regulation 1/2003 nor the previous (Regulation No 17), contains a specific provision governing lawyer – client communications. Nevertheless, the Court of Justice in AM & S Europe[1] later confirmed in Akzo Nobel[2], held that Regulation No 17 must be interpreted as providing protection only for correspondences with independent lawyers—that is to say, a lawyer not linked to the undertaking by an employment relationship and who are members of the bar in a Member State, where such communications occur for the purposes —where such communications relate directly to the interests of the client’s rights of defence.

As a result, correspondences with in-house lawyers, even if they are fully qualified and acting in a professional legal capacity, are excluded from this protection under EU law. The Court’s rationale is based on the premise that-in house lawyers, due to their employment relationship, cannot be presumed to act with the same degree of independence as external counsels and hence they cannot ignore the company’s commercial strategy. Accordingly, communications between a company and its own legal department are not shielded from seizure or review by the Commission during an inspection, even when these involve confidential legal advice

This position stands in contrasts to the broader protection recognised in some Member States — such as those of Ireland, Poland, Portugal and the Netherlands — where national rules on legal privilege are more expansive and extend, under certain conditions, to communications with in-house counsel[3]. This discrepancy between EU’s narrow definition and the broader national standards creates a structural asymmetry: what may be privileged in a domestic investigation might not be in an EU led one.

This disparity raises and important problem in terms of legal certainty and rights of defence. Undertakings subject to competition investigation may find their procedural rights diminished depending on the authority they are being investigated. Furthermore, more worryingly, National Competition Authorities, aware of their own legal limitations, may be tempted to allocate the case to the Commission via the European Competition Network Notice on the basis that the Commission is “better placed to act”[4]. In doing so a conduct could result in an infringement due to the evidence obtained under EU law that would otherwise be inaccessible under national law.

While it is true that this is a procedural convenience and enhances enforcement capabilities, it becomes problematic when it touches fundamental rights of defence. The ability of a national authority to circumvent the national privilege protections by strategically triggering the involvement of the Commission risks undermining the rights of defence of the parties. Hence, if such situations were to occur, individuals and undertakings would be unable to predict the how to reliably assert their rights. Thus, in practice, whether a communication is protected or not would no longer depend on its legal character or purpose, but rather on the strategic choices of the authorities.

To remedy this, a uniform or harmonised standard on legal professional privilege across the European Union should be considered.

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[1] Judgment of 18 May 1982, AM & S Europe Limited v Commission of the European Communities, C- 155/79, ECLI:EU:C:1982:157.

[2] Judgment of 14 September 2010, Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd v European Commission, C-550/07 P. ECLI:EU:C:2010:512.

[3] Latham & Watkins LLP, Pro Bono in the European Union (2012), https://www.lw.com/admin/upload/SiteAttachments/pro-bono-in-the-european-union.pdf.

[4] European Commission, Commission Notice on Cooperation within the Network of Competition Authorities, OJ C 101, 2004, para. 9.

Where you would want to apply interim measures is where you have novel cases and the problem of doing interim measures… is that you still have to prove that it is needed[1].

In the landscape of EU competition enforcement, interim measures have long been the exception rather than the norm. While theoretically powerful, their practical use has remained limited—so much that between IMS Health (2001) and Broadcom (2019), the European Commission has not adopted a single interim measure decision. This 18 year gap raises an important question: why has the Commission been so reluctant to use this tool?

At its core, an interim measure is a provisional remedy: it is meant to prevent serious and irreparable harm to competition before the final decision in a case is adopted. It works as a safeguard against the irreversible consequences that could result if the allegedly anticompetitive conduct were allowed to continue unchecked during the investigation.

Although in Regulation 17 the Commission was not explicitly granted such powers. The power to impose interim measures was originally derived from the case law, indeed, in Camera Care the CJEU held that the EC had the implied power to order interim measures to prevent infringement decisions from becoming ineffectual or even illusory because of the action of certain undertakings[2]. This was later codified in Article 8 of Regulation 1/2003, which formally enables the Commission to impose interim measures ex officio—that is, on its own initiative. This also meant that undertakings no longer enjoy a right to request for such measures directly.

Several factors help explain the Commission’s longstanding reluctance:

• First, the removal of the complainant’s right to request interim measures has reduced the pressure on the EC to act. As suggested in paragraph 80 of the Commission’s Complaints Notice, complainants should seek interim relief to national courts or NCAs[3]. In practice, this has shifted the burden of interim enforcement to the national level.
• Second, interim measures require a parallel procedure with distinct procedural guarantees and the likelihood of judicial review. For a resource-limited authority like DG COMP, this implies added complexity and risks delaying the main investigation.
• Third, the Commission must show not only a prima facie infringement, but also the existence of a serious and irreparable harm to competition. This requires a high evidentiary standard, particularly difficult to meet in cases involving new theories of harm.
• Fourth, if interim measures are later found unjustified, the Commission may face damages (Schneider Electric). This can act as a deterrent effect and it can be magnified in cases involving new legal theories of harms, where the danger of a false positive is greater.
• Fifth and lastly, there’s the concern of false positives, where early intervention, especially in complex or innovative markets, risks “picking winners.”

Yet in Broadcom (2019), the Commission’s approach shifted. The Commission imposed interim measures to order Broadcom to stop imposing exclusivity requirements to purchasers—its first use in nearly two decades. Interestingly, these interim measures later formed the basis for a commitments decision under Article 9. This suggest that interim measures can function as a form of strategic leverage to prompt voluntary compliance under Article 9.

This evolution could indeed point to a more pragmatic approach: while still rarely used, interim measures may become a tool of strategic negotiation for future commitment and therefore, to address the concerns of the enforcer in a more direct and effective way. In this sense, interim measures may be awakening, not as blunt instruments, but as subtle tools for anticipatory enforcement.

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[1] Alec J. Burnside and Adam Kidane, “Interim Measures: An Overview of EU and National Case Law,” e-Competitions Bulletin, June 7, 2018: https://www.concurrences.com/en/review/issues/no-4-2016/case-comments/evidences-the-general-court-of-the-european-union-holds-private-wiretaps

[2] Order of the Court, 17 January 1980, Camera Care Ltd v Commission of the European Communities, para. 2, ECLI:EU:C:1980:18.

[3] Commission Notice on the handling of complaints by the Commission under Articles 81 and 82 of the EC Treaty.