The 2023 amendment to the Competition and Consumer Protection Act introduced protection of confidential communications between an undertaking and an independent advocate or legal adviser: legal professional privilege (LPP).
Previously, confidentiality was protected by applying the Code of Criminal Procedure mutatis mutandis, an imperfect solution. The change is welcome, but the devil is in the detail. It is worth examining the scope of protection, which correspondence qualifies and whether the rules genuinely protect businesses.
What does the protection involve?
In brief, if during an inspection or search the inspected entity or its authorised representative states that particular documents come from an external advocate or legal adviser, inspectors should leave them at the premises, and they cannot be used as evidence.
Confidentiality of lawyer–client communications is not the same as lawyers’ professional secrecy, although the terms are often wrongly used interchangeably. LPP is a client’s right to keep communications with qualified counsel confidential. Professional secrecy is the lawyer’s duty to keep secret everything learned while providing legal assistance[1].
What is protected?
Not every piece of legal advice falls within LPP.
First, protection covers communications only with a qualified lawyer independent of the inspected entity: an advocate, legal adviser or lawyer admitted to practise in a Member State.
Independence is undefined, but appears to exclude in-house communications[2]. EU case law has long interpreted independence narrowly[3]. UOKiK can be expected to follow this approach, allowing its staff to read correspondence with lawyers employed within the undertaking.
This particularly affects Polish legal advisers, who, unlike advocates, may practise under employment or civil-law contracts. The solution is controversial given professional ethical rules and legal advisers’ statutory independence. Can it reasonably be said that an employed legal adviser is more dependent, or less independent, than one providing services on a B2B basis?
Second, the provision refers to written communications: letters and documents, including electronic ones. Scholarship nevertheless regards this broadly, covering emails and audio and video recordings[4], such as videoconferences with qualified external counsel.
Third, protection covers only documents created to exercise the right to legal protection in connection with the subject matter of the proceedings concerned by the inspection or search. The rules do not clarify whether all documents connected with advice qualify or only those created after proceedings begin, nor whether all lawyer–client communications, including the client’s questions and factual account, qualify or only communications from lawyer to client. Extending protection to the entire exchange seems justified and is supported by EU case law[5].
UOKiK may take a cursory look
Inspectors may take a cursory look at the document. The legislature understands this surprisingly broadly: the authority may establish not only author, addressee, date and title, but even the document’s subject matter. It may also demand further oral explanations or a version excluding protected information.
The sealed-envelope procedure
If all conditions are met, inspectors leave the protected documents at the premises. If in doubt, the Court of Competition and Consumer Protection (SOKiK) determines their status. Inspectors should promptly send disputed documents to it in a sealed envelope. Again, the statutory wording deserves attention: “promptly” means no later than after the inspection ends. Within one month, SOKiK orders the return of all or some documents either to the inspected entity or to the President of UOKiK for the proceedings. An interlocutory appeal lies to the second-instance court.
Conclusion
The satisfaction of scholars and practitioners that LPP is comprehensively regulated is justified. So is criticism that the amendment’s scope is too narrow[6]: it covers only inspections and searches, omitting other procedural stages and investigative measures. Lawyer–client correspondence should arguably be protected in every case, whether counsel is internal or external. LPP should also cover internal business documents reporting legal advice or prepared to obtain it.
Practical advice
The authority can be expected to secure documents broadly, with case law developing only through specific disputes.
Some measures can be taken now. Lawyers should devise ways of preparing advice so that cursory inspection does not breach privilege. Client correspondence should be clearly marked “external legal advice”; information provided by clients for legal assessment should be marked as preparatory material for a legal opinion. In sensitive matters potentially attracting antitrust scrutiny, using an external law firm is advisable. During an inspection or search, legal assistance is valuable in protecting rights.
[1] M. Bernatt, B. Turno, Zasada legal professional privilege w projekcie zmiany ustawy o ochronie konkurencji i konsumentów, IKAR 2013/1/17.
[2] A. Stawicki, Prawa przedsiębiorców jako warunek skutecznego egzekwowania przepisów prawa konkurencji – rozważania wokół implementacji dyrektywy ECN+, IKAR 2021/3/81.
[3] Judgment of 18 May 1982, Case 155/79, AM&S Europe Limited v Commission; judgment of 14 September 2010, Case C-550/07 P, Akzo & Akcros v Commission.
[4] P. Korycińska-Rządca, Ochrona tajemnic strony postępowania antymonopolowego w sprawach praktyk ograniczających konkurencję, Warsaw 2020; B. Turno, Aktualny standard w zakresie ochrony poufności komunikacji pomiędzy prawnikiem a klientem (Legal Professional Privilege) w ustawie o ochronie konkurencji i konsumentów, in W. Jasiński (ed.), Standardy rzetelności postępowania w sprawach z zakresu ochrony konkurencji i konsumentów, Warsaw 2016.
[5] CJEU judgment of 8 December 2022, C-694/20, Orde van Vlaamse Balies.
[6] A. Piszcz, M. Knapp, Dyrektywa Parlamentu Europejskiego i Rady (UE) 2019/1 a gwarancje ochrony praw podstawowych strony postępowania antymonopolowego w Polsce – wybrane zagadnienia, Białostockie Studia Prawnicze 2023, vol. 28, no. 4.
