Mandatory reads
There’s clearly an excessive output a fair amount of competition law publications and presentations out there. That certainly includes us too. It’s difficult to discern what to read and what not in your limited time. I have a folder of “pending reads” where I accumulate stuff that will often not be read.
But there are some publications that never make it to that folder, because I always read them right away:
-These include any article published by Hearing Officer Wouter Wils. Wouter recently published a piece on Legal Professional Privilege that is a must-read. It is available here. On the same topic, Eric Gippini’s 2004 Fordham article is another reading that should be mandatory for lawyers. Both now feature together in our syllabus for the module on competititon procedure at the BSC.
-These also include Fernando Castillo‘s annual presentations on cartel case law at the ULB. This have become a essential facility for all lawyers who would rather not read some several thousands pages of cartel case law, so pretty much everyone. As such, we requested Fernando access, and permission to make these available. And he kindly accepted to make his work open-source. Some time ago we provided you with his presentations covering the period 2009-2016 (see here) (unsurprisingly, there were many hundreds of downloads for those). Today we offer you his most recent presentations, covering 2017 and 2018:
Cartels 2017_Fernando Castillo
Cartels 2018 Fernando Castillo
Chillin'Competition 
As an in-house lawyer enrolled with the Dutch Bar, I strongly disagree with the notion that LPP should not be available to in-house counsel (or, for that matter, with AG Kokott’s suggestion that I might lend myself “as a place for storing illegal documents such as cartel agreements”).
The crucial flaw in Mr. Wils’ article is that his arguments focus on the desirability of “extending” LPP to in-house lawyers, rather than debating whether there are justifications to limit this fundamental right. In this regard, Mr. Wils’ view that LPP is a right of the client rather than the lawyer is irreconcilable with e.g. Dutch law, under which the privilege (“verschoningsrecht”) is enjoyed by – and imposes confidentiality obligations on – those in a protected profession.
Against this backdrop, Mr. Wils’ most important argument appears to be that there is no need for in-house lawyers because companies can afford external lawyers. This is like saying that you can ban free speech on the internet because there are already sufficient newspapers.
What’s clear from the article is that the Commission simply considers LPP as an inconvenience in its investigations. To the extent this is a justified concern, it might potentially warrant a discussion about the scope of LPP. But it does not justify taking away a fundamental right from an entire category of qualified professional lawyers. Luckily I am not alone in my beliefs. In 2013, the Dutch Supreme Court confirmed that Dutch in-house lawyers continue to enjoy the protection of LPP, except in EU commission investigations (LJN BY6101).
On a more humorous note, I applaud the lobbying efforts of my former private practice colleagues as captured in footnote 37: “In fact extension of legal professional privilege to in-house lawyers might lead to less protection of fundamental rights, in that it could lead large undertakings to use only in-house counsel, thus reducing the availability of independent lawyers on the open market, to the detriment of smaller companies that cannot afford in-house counsel.”
Luuk Bressers
26 February 2019 at 3:32 pm