recent decisions by the ECJ such an argument is unlikely to be successful. However, the author asserts that upon the accession of the EU to the Convention in accordance with Article 6(2) TEUthe EU institutions will be required by the ECtHR to recognise the rights of defence of undertakingsas including the right to claim LPP for documents prepared by in-house lawyers for the purposes of their employers rights of defence in EU competition proceedings. The author accounts for this byidentifying a subtle but significant divergence in the interpretative approaches adopted by bothCourts.
2. Legal Professional Privilege and the European Court of Justice
Legal professional privilege was not a right that was explicitly available in the early days of EUcompetition law. This was due to the Council’s rejection of the proposals put forward in theDeringer Report
to expressly incorporate the right into Reg. 17/62. This decision did not gouncontested
the ECJ announced its intention to observe the principlesset forth in the Convention when interpreting the Commission’s powers under Reg. 17/62. Thisfollowed the decision in
Nold KG v. Commission
where the ECJ held that the rights enshrined inthe Convention formed the general principles of European law.
LPP was established in Community law as a “judicial creation”
AM & S v. Commission.
Thecase concerned a Commission investigation into the anti-competitive practices of the applicant.During the course of the investigation the Commission required the production of certaindocuments. The applicant produced some of the documents but claimed that the remainder were protected by LPP as they were prepared by in-house lawyers and contained information relevant tothe undertaking’s rights of defence. The question for the Court was whether, and if so to whatextent, such a right existed in Community law? The Court held that communications between a
(Doc. 104/1960 – 1961).
Written Question No. 63/78, O.J. C 188/30 (1978).
National Panasonic (UK) Ltd. v. Commission,
 E.C.R. 2033.
Nold KG v. Commission,
 E.C.R. 491.
EU Competition Enforcement and Human Rights,
(Elgar Publishing Ltd, 2008), at 96.
AM & S Europe Limited v Commission
,  E.C.R. 1575.