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CLO Legal Professional Privilege
LPP in Belgium 4/9/2018 2
Content
LPP in Belgium
• What is LPP in the sense of art 5 Act IBJ/IJE (1 March 2000)
• What is covered by LPP according to Belgium Case Law
• Is LPP recognized by Belgian authorities
• Company lawyer’s LPP framework
• Consequences of this definition in a Belgian context
LPP outside the Belgian context
Summarized overview
Challenges ahead
4/9/2018 3What is LPP in the sense of art 5 Act IBJ/IJE “Les avis rendus par le juriste d'entreprise, au profit de son employeur et dans le cadre de son activité de conseil juridique, sont confidentiels. » • advice • by company lawyer • to the benefit of his/her employer-company & associated companies (for business federations also legal opinions for the benefit of the members of the federation) • in the framework of his/her activity as legal counsel • confidential 4/9/2018 4
What is covered by LPP according to Belgium Case Law
• Brussels Court of Appeal, 5 March 2013
The “Belgacom” case
• Supreme Court, 10 December 2014
• Advice, written or oral
• Upon request or spontaneous
• The request for a legal opinion and the underlying documentation
• The correspondence relating to such request
• Drafts of the opinion and the preparatory documents
4/9/2018 5Is LPP recognized by Belgian authorities • Expressely by the Belgian Competition Authority in the Directives for inspection Procedures: “LPP” means Legal Professional Privilege. Belgian Law and European case las acknowledge under certain conditions that correspondence between outside counsel and his clients needs to be protected. The LPP is an exception to the investigation rights of the employees of the BCA. This protection also exists under Belgian law for company lawyers who are members of the IJE-IBJ. Belgian Official Journal – 24 December 2013 4/9/2018 6
Is LPP recognized by Belgian authorities
• In case law before courts (civil and labor) and during
investigations (tax, criminal, administrative)
• Recent:
• Tax investigation:
• Act 5 IJE = valid
• Role of IJE president
• Criminal investigation:
• Sealed envelop procedure
• 3 cases in Q4 2017
4/9/2018 7Company lawyer’s LPP framework*
• Legal opinions given by company lawyers for the benefit of their company are
confidential as provided for in art. 5 Act IBJ/IJE
• This confidentiality is applicable to all documents that are exchanged related to
said legal opinions
• The confidentiality implies that legal opinions are protected against unwanted
disclosure or seizure by third parties
• The confidentiality of the legal opinions is based on the provision of the ECHR
and the EU Charter of fundamental rights
• The company lawyer complies with the Code of Ethics and respects in
particularly his obligation to give independant advice in accordance to
applicable law and his obligation to respect professional secrecy.
* Decision Counsil IJE 27 Oct 2017
4/9/2018 8Consequences of this definition in a Belgian context
• Legal basis for confidentiality is the IJE Act itself
• Backbone for Act. 5 IJE when in conflict with other legal
provisions
• Act. 8 ECHR right of privacy: interference by public authorities is
disproportionate in regard of Act. 5 IJE that was instated by law to
protect the essence of the company lawyer’s mission (Belgacom case).
• Act. 6 ECHR: right of defence?
• EU Case Law (AKZO-case) not for company lawyers
• Belgian case law: no known case law, but: EU case law and Belgian case law on
LPP lawyers can be transponed to company lawyers as the content of professional
secrecy is the same (due to application of the code of ethics namely respect for
law, independence)
4/9/2018 9LPP outside Belgian context
• EU situation (Thomas Wilson)
• Outside EU situation (to discuss)
4/9/2018 10What’s the LPP situation outside the
Belgian context?
• At EU level the scope of LPP is • There is limited EU jurisprudence, i.e.
narrower than in Belgium or other EU a number of LPP related questions
Member States (e.g. the UK) have not been dealt with
• LPP is a fundamental right which • No reference to LPP in EU rules for
increasingly plays an important role in proceedings before the Commission
competition cases before the EU • The scope of LPP is not only
Commission relevant in EU competition cases but
• The EU Commission interprets LPP also in the day-to-day business, e.g.
narrowly when creating documents
4/9/2018 11What is covered by EU LPP according to
EU case law?
1. Written communications with an external, EU-qualified lawyer made for
the purpose and in the interest of exercising the client’s rights of defence in
the proceedings
2. Internal notes circulated within the company reporting the text or the
content of communications with an external, EU-qualified lawyer
containing legal advice
3. Working documents and summaries prepared by the client, provided that
they were drawn up exclusively for the purpose of seeking legal advice
from an external, EU-qualified lawyer
4/9/2018 12Practical examples: Legal advice from non-EU
qualified lawyers
• EU Court of Justice (AM&S): LPP is limited to external lawyers qualified in a Member State
EU case law • AG Kokott in Akzo: inclusion of third country lawyers would not ‘under any circumstances’
be justified
• LPP is limited to EU-qualified lawyers
• EU Commission case teams sometimes accept LPP claims for legal advice provided by non-
EU lawyers working for the same internationally active law firm
• In merger cases it has more recently been accepted that parties produce a US privilege log
justifying US privilege claims
Commission • However, in other cases the Commission stuck strictly to the EU case law, requesting all
approach legal advice from non-EU lawyers
• Carries the risk that foreign privilege (e.g. US) is waived as a result of the disclosure
• The question of the personal scope of LPP is a topical one, also in light of the Brexit vote
• LPP will most likely no longer apply to legal advice from UK-qualified lawyers in
Commission cases post-Brexit
4/9/2018 13Practical examples: Communications with non-
lawyer advisers
• LPP applies to external lawyers
EU case law
• No case law on correspondence between client and non-lawyer advisers
• Commission’s Best Practice Notice on Articles 101/102 TFEU: LPP does not extend to
other professional advisers, eg patent attorneys or accountants
• No legal protection of correspondence with PR consultancy firms, investment bankers etc
Commission
Example: Remedies analysis by investment bankers is not covered by LPP under the
approach
Commission’s definition
NB: Just because communication / advice is strategic for defending the case it does not
mean it is protected by LPP!
• The Commission has accepted that correspondence involving economists does not have to
be disclosed but this has been in the specific situation that (1) the external lawyers retained
Economists the economists and (2) in complex merger cases
• In this situation the economists assist the external lawyers from an economic perspective in
order to enable the external lawyers to provide legal advice to the client
4/9/2018 14Practical examples: Internal notes reflecting
external legal advice
• The General Court in Hilti: LPP also covers ‘internal notes which are confined to reporting the
text or the content of (…) communications with an independent lawyer containing legal
advice’
• Commission case teams occasionally interpret the Hilti order as meaning that documents are
Internal notes only protected by LPP if they exclusively contain legal advice
reflecting • This would mean that external legal advice contained in a project memorandum to the board
external legal is not covered by LPP; same would apply for board minutes / internal email chains not solely
advice containing legal statements from external lawyers
• Such narrow meaning cannot be derived from the General Court’s order
• The key message from the Hilti decision is that the content of legal advice is protected
irrespective of the form of communication
• Many company documents deal with different topics and do not only contain legal advice
• The case teams usually request partial redactions of partially privileged documents;
Partial required in cartel / antitrust cases pursuant to the Commission’s Best Practice Notice
redactions • This can be a significant work burden for the parties and must not undermine the
fundamental right of LPP
4/9/2018 15Practical examples: Legal advice not related to
competition proceedings
• LPP covers all written communication between the client and his lawyer after the initiation of
the procedure if made in the interest of the client’s rights of defence
EU case law
• LPP also extends to earlier communication if there is a relationship to the subject matter of
that procedure
• LPP applies to correspondence with the lawyer before the start of the proceedings only if
there is a relationship with the subject matter of competition proceedings
Commission • Example: This means that competition law advice regarding an alternative transaction (eg a
approach potential acquisition of a competitor) is not covered under the definition
• Non-competition related advice, eg tax or labour law advice, not protected by LPP under the
Commission’s definition
• Legal advice not directly related to competition proceedings should be protected by LPP
• Commission position contradicts EU jurisprudence in that everyone needs to be able to
Suggested consult a lawyer ‘without constraint’
approach • Not mandatory to limit LPP to competition proceedings
• In any event, non-competition law advice should normally not be relevant / necessary for
the Commission’s investigation
4/9/2018 16EU LPP and ECN+ Directive
• The ECN+ Directive is intended to • The proposal to include a provision
empower national competition to oblige Member States to respect
authorities to be more effective when the confidentiality of written
applying EU competition rules communications between the
• The EU Parliament economic affairs client and his independent lawyer
committee approved the Commission was rejected by the EU Parliament
proposal in February 2018 • No definition of ‘independent lawyer’
• Negotiations for a final agreement of included in the directive (had been
the directive (“trilogues”) have been proposed to be limited to
scheduled to start after 12 March external lawyers)
2018
4/9/2018 17EU LPP and SMIT
• As part of the single market strategy, • The claim is that the Commission will
the Commission proposed a only use the proposed regulation as a
regulation for a Single Market last resort
Information Tool (SMIT) in 2017 • Based on the Court of Justice Akzo
• According to the Commission, SMIT judgment the EU LPP standard would
is needed in order to monitor apply (as the information request
compliance with EU internal market would be issued by the EU
rules and to identify areas with Commission on the basis of the
enforcement deficits / infringements proposed regulation)
of internal market rules • Relevance for legal communications
• SMIT would give the Commission cannot be excluded
access to market information of • Preamble / explanatory memorandum
private firms mention in particular “factual market
data”, but proposal does not include any
• Information can only be requested if strict limitation
there is ‘serious difficulty’ with the
application of Union law risking the
‘undermining of Union policy objectives’
4/9/2018 18Employer with activities in Belgium
Company lawyer
Legal opinion
Investigation Activities in Belgium Associated companies
By Belgian authorities LPP LPP
In Belgium
By European authorities No protection No protection
In Europe No protection No protection
Outside Europe If the country recognises LPP as well
4/9/2018 19Challenges ahead
• Recognition LPP inhouse counsel on a European level
• Revision AKZO – Charter of fundamental rights
• Strengthen by bilateral agreement or international agreements
• Criminal investigations?
• Act. 458 CL applicable to reinforce opposability in criminal
investigation
• Role of the IJE president : role of the dean of the bar
4/9/2018 20You can also read
