A Recent EU Court of Justice judgment potentially expands the Scope of Legal Privilege in Antitrust Proceedings
29 December 2022
Companies seeking to resist disclosure of information related to legal advice in the context of EU antitrust proceedings could find support in the Orde van Vlaamse Balies judgment of the Court of Justice of the European Union (CJEU). The judgment clarifies that the legal professional privilege extends not only to information exchanged for purposes of legal defence in the ongoing proceedings, but also to legal advice more broadly. The judgment suggests that the European Commission (EC) can no longer automatically reject the invoking of legal professional privilege on the basis that these communications did not relate to the exercise of the rights of defence in those proceedings. The judgment could prove particularly relevant to companies facing proceedings where the theory of harm revolves around the allegedly anticompetitive exercise of IP rights, such as standard essential patent injunctions, patent litigation, or patent settlements.
Clifford Chance
