European Competition Law provides a wide-ranging review of the European rules relating to competition: restrictive agreements, abuse of a dominant position, impact of intellectual property rights, procedure, merger control, State aid.

European Competition Law

Professional secrecy is expressly protected by Article 28 of Regulation No 1-2003 of 16 December 2002. It prohibits, on the one hand, the use of information covered by professional secrecy for a purpose other than that for which it was requested and, on the other hand, the notice of information which is confidential by nature. This obligation of secrecy, which has its legal basis in Article 339 TF …

Professional secrecy

Professional secrecy is expressly protected by Article 28 of Regulation No 1-2003 of 16 December 2002. It prohibits, on the one hand, the use of information covered by professional secrecy for a purpose other than that for which it was requested and, on the other hand, the notice of information which is confidential by nature. This obligation of secrecy, which has its legal basis in Article 339 TFEU, applies to officials of the Union, the Commission, the competent authorities of the Member States and their officials and servants. It covers both confidential information and business secrets. Rights such as the right to legal assistance are covered as early as the preliminary investigation stage.

According to the European Court of Justice, professional secrecy covers only information that meets three cumulative conditions: i) it is known only to a limited number of people; ii) its disclosure is likely to cause serious harm to the person who supplied it or to third parties; iii) the interests likely to be harmed by its disclosure are objectively worthy of protection .

Some information is confidential by virtue of its source. This is the case for correspondence between lawyers and their clients, provided that it is exchanged within the framework and for the purposes of the rights of defence, and emanates from lawyers who are structurally, hierarchically and functionally independent . This protection is based on the fundamental right of every person subject to trial to be able to speak freely to his or her lawyer. Insofar as respect for the confidentiality of this type of communication is governed by principles and legal concepts common to all Member States, it constitutes a general principle of European law. On the basis of Article 7 of the EU Charter of Fundamental Rights and Article 8 of the ECHR (European Court of Human Rights), the Court of Justice recently extended the scope of protection to legal consultations in all fields, with regard to both their existence and their content . This solution, which contrasts with that adopted by certain Member States, such as France, which reserve the benefit of confidentiality to the exercise of the rights of the defense, should be the rule throughout the EU, since the Charter applies to Member States when they are implementing EU law.

Protection of the principle of confidentiality covers both correspondence exchanged after the administrative procedure has been initiated, which could lead to a decision applying Articles 101 and 102 TFEU or a decision imposing a financial penalty on the undertaking, and correspondence prior to the initiation of the administrative procedure. However, the mere fact that a document has been the subject of discussions with a lawyer is not sufficient to confer on it the benefit of protection, which is reserved solely for documents stating the need or advisability of seeking legal advice on the conduct under examination or on the action to be taken is stated, such as an application for leniency . However, when an undertaking expressly waives its right to invoke the confidentiality of a letter exchanged with its lawyer, in full knowledge of its rights, and, after having been drawn to the Commission's attention of the consequences of such a waiver, unambiguously confirms its intention to do so, it cannot complain of a breach of its rights of defense because the letter was used by the Commission in the course of its investigation .

The same protection applies to internal memos which reproduce the text of the correspondence in order to circulate it within the undertaking and submit it to management for consideration . On the other hand, confidentiality does not apply to internal memos written by in-house lawyers  or to exchanges within an undertaking with lawyers, similarly admitted to the bar, who have an employment relationship with the undertaking .

Case T-341-12 Evonik Degussa GmbH, Judgment of 28 January 2015, LawLex201700000950JBJ.

Case 155-79 AM & S Europe Limited, Judgment of 18 May 1982, LawLex200500004095JBJ; See excluding from protection correspondence with a lawyer bound by an employment contract but who remains a member of the profession and subject to its rules of discipline and ethics: Case T-125-03 Akzo Nobel Chemicals Ltd,  Judgment of 17 September 2007, LawLex200700001480JBJ.

Case C-432/23 Ordre des avocats du barreau de Luxembourg, Judgment of 26 September 2024, LawLex202400009322JBJ.

See Case T-125-03 Akzo Nobel Chemicals Ltd, Judgment of 17 September 2007, LawLex200700001480JBJ, excluding from protection a memorandum drawn up by a law firm as part of a competition law compliance program, since the scope of such a program goes beyond the exercise of the rights of defense.

Case C-166/19 P Unichem Laboratories Ltd, Judgment of 27 June 2024, LawLex202400009109JBJ.

Case T-30-89 Hilti (AG), Judgment of 4 April 1990, LawLex200500004636JBJ.

Commission Decision No 98-273 of 28 January 1998, VW, LawLex200500004750JBJ.

Case C-550/07 P Akzo Nobel Chemicals Ltd, Judgment of 14 September 2010, LawLex201000001057JBJ.

European Competition Law

229. Professional secrecy

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229. Professional secrecy

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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