Keywords
Summary

Keywords

1 . COMPETITION - ADMINISTRATIVE PROCEDURE - COMMISSION ' S INVESTIGATORY POWERS - POWER TO REQUIRE PRODUCTION OF BUSINESS RECORDS - CONCEPT OF ' ' BUSINESS RECORDS ' ' - COMMUNICATIONS BETWEEN LAWYER AND CLIENT - INCLUSION - CONDITIONS

( REGULATION NO 17 OF THE COUNCIL , ART . 14 )

2 . COMPETITION - ADMINISTRATIVE PROCEDURE - COMMISSION ' S INVESTIGATORY POWERS - POWER TO DEMAND PRODUCTION OF THE DOCUMENTS WHOSE DISCLOSURE IT CONSIDERS NECESSARY - POWER TO DECIDE WHETHER OR NOT A DOCUMENT MUST BE PRODUCED

( REGULATION NO 17 OF THE COUNCIL , ART . 14 )

3 . COMPETITION - ADMINISTRATIVE PROCEDURE - COMMISSION ' S INVESTIGATORY POWERS - POWER TO DEMAND PRODUCTION OF COMMUNICATION BETWEEN LAWYER AND CLIENT - LIMITS - PROTECTION OF THE CONFIDENTIALITY OF SUCH COMMUNICATIONS

( REGULATION NO 17 OF THE COUNCIL , ART . 14 )

4 . COMPETITION - ADMINISTRATIVE PROCEDURE - COMMISSION ' S INVESTIGATORY POWERS - REFUSAL OF THE UNDERTAKING TO PRODUCE COMMUNICATIONS WITH ITS LAWYER ON THE GROUND OF CONFIDENTIALITY - POWERS OF THE COMMISSION

( REGULATION NO 17 OF THE COUNCIL , ART . 14 )

Summary

1 . ARTICLE 14 ( 1 ) OF REGULATION NO 17 EMPOWERS THE COMMISSION WHEN INVESTIGATING AN UNDERTAKING TO REQUIRE PRODUCTION OF ' ' BUSINESS RECORDS ' ' , THAT IS TO SAY , DOCUMENTS CONCERNING THE MARKET ACTIVITIES OF THE UNDERTAKING , IN PARTICULAR AS REGARDS COMPLIANCE WITH THOSE RULES . WRITTEN COMMUNICATIONS BETWEEN LAWYER AND CLIENT FALL , IN SO FAR AS THEY HAVE A BEARING ON SUCH ACTIVITIES , WITHIN THAT CATEGORY OF DOCUMENTS .

2 . SINCE BY VIRTUE OF ARTICLE 14 ( 1 ) OF REGULATION NO 17 THE COMMISSION MAY DEMAND PRODUCTION OF THE DOCUMENTS WHOSE DISCLOSURE IT CONSIDERS ' ' NECESSARY ' ' IN ORDER THAT IT MAY BRING TO LIGHT AN INFRINGEMENT OF THE TREATY RULES ON COMPETITION , IT IS IN PRINCIPLE FOR THE COMMISSION ITSELF , AND NOT THE UNDERTAKING CONCERNED OR A THIRD PARTY , TO DECIDE WHETHER OR NOT A DOCUMENT MUST BE PRODUCED TO IT .

3 . THE NATIONAL LAWS OF THE MEMBER STATES PROTECT , IN SIMILAR CIRCUMSTANCES , THE CONFIDENTIALITY OF WRITTEN COMMUNICATIONS BETWEEN LAWYER AND CLIENT PROVIDED THAT , ON THE ONE HAND , SUCH COMMUNICATIONS ARE MADE FOR THE PURPOSES AND IN THE INTERESTS OF THE CLIENT ' S RIGHTS OF DEFENCE AND , ON THE OTHER HAND , THEY EMANATE FROM INDEPENDENT LAWYERS , THAT IS TO SAY , LAWYERS WHO ARE NOT BOUND TO THE CLIENT BY A RELATIONSHIP OF EMPLOYMENT . VIEWED IN THAT CONTEXT REGULATION NO 17 MUST BE INTERPRETED AS PROTECTING , IN ITS TURN , THE CONFIDENTIALITY OF WRITTEN COMMUNICATIONS BETWEEN LAWYER AND CLIENT SUBJECT TO THOSE TWO CONDITIONS , AND THUS INCORPORATING SUCH ELEMENTS OF THAT PROTECTION AS ARE COMMON TO THE LAWS OF THE MEMBER STATES . SUCH PROTECTION MUST , IF IT IS TO BE EFFECTIVE , BE RECOGNIZED AS COVERING ALL WRITTEN COMMUNICATIONS EXCHANGED AFTER THE INITIATION OF THE ADMINISTRATIVE PROCEDURE UNDER REGULATION NO 17 WHICH MAY LEAD TO A DECISION ON THE APPLICATION OF ARTICLES 85 AND 86 OF THE TREATY OR TO A DECISION IMPOSING A PECUNIARY SANCTION ON THE UNDERTAKING . IT MUST ALSO BE POSSIBLE TO EXTEND IT TO EARLIER WRITTEN COMMUNICATIONS WHICH HAVE A RELATIONSHIP TO THE SUBJECT-MATTER OF THAT PROCEDURE . THE PROTECTION THUS AFFORDED MUST APPLY WITHOUT DISTINCTION TO ANY LAWYER ENTITLED TO PRACTISE HIS PROFESSION IN ONE OF THE MEMBER STATES , REGARDLESS OF THE MEMBER STATE IN WHICH THE CLIENT LIVES .

HOWEVER , THE PRINCIPLE OF CONFIDENTIALITY DOES NOT PREVENT A LAWYER ' S CLIENT FROM DISCLOSING THE WRITTEN COMMUNICATIONS BETWEEN THEM IF HE CONSIDERS THAT IT IS IN HIS INTERESTS TO DO SO .

4 . SINCE DISPUTES CONCERNING THE APPLICATION OF THE PROTECTION OF THE CONFIDENTIALITY OF WRITTEN COMMUNICATIONS BETWEEN LAWYER AND CLIENT AFFECT THE CONDITIONS UNDER WHICH THE COMMISSION MAY ACT IN A FIELD AS VITAL TO THE FUNCTIONING OF THE COMMON MARKET AS THAT OF COMPLIANCE WITH THE RULES ON COMPETITION , THEIR SOLUTION MAY BE SOUGHT ONLY AT COMMUNITY LEVEL . IF , THEREFORE , AN UNDERTAKING WHICH IS THE SUBJECT OF AN INVESTIGATION UNDER ARTICLE 14 OF REGULATION NO 17 REFUSES , ON THE GROUND THAT IT IS ENTITLED TO PROTECTION OF THE CONFIDENTIALITY OF INFORMATION , TO PRODUCE , AMONG THE BUSINESS RECORDS DEMANDED BY THE COMMISSION , WRITTEN COMMUNICATIONS BETWEEN ITSELF AND ITS LAWYER , AND THE COMMISSION IS NOT SATISFIED THAT PROOF OF THE CONFIDENTIAL NATURE OF THE DOCUMENTS HAS BEEN SUPPLIED , IT IS FOR THE COMMISSION TO ORDER , PURSUANT TO ARTICLE 14 ( 3 ) OF THE ABOVEMENTIONED REGULATION , PRODUCTION OF THE COM MUNICATIONS IN QUESTION AND , IF NECESSARY , TO IMPOSE ON THE UNDERTAKING FINES OR PERIODIC PENALTY PAYMENTS UNDER THAT REGULATION AS A PENALTY FOR THE UNDERTAKING ' S REFUSAL EITHER TO SUPPLY SUCH ADDITIONAL EVIDENCE AS THE COMMISSION CONSIDERS NECESSARY OR TO PRODUCE THE COMMUNICATIONS IN QUESTION WHOSE CONFIDENTIALITY , IN THE COMMISSION ' S VIEW , IS NOT PROTECTED BY LAW .