The latest amendments to the legislative Act regarding competition and consumer protection

It is axiomatic that antitrust / competition protection law originated in the United States, yet certain recent developments there are driven by political and economic factors also affecting Europe. As Bernadeta Kasztelan-Świetlik and Bartek Świetlik of GESSEL explain, soon enough, European antitrust authorities may be adopting a wider perspective on the activities of private equity firms, regarding them in a deeper context.

The latest amendments to the legislative Act regarding competition and consumer protection (“the Act”) from 9 March 2023, intended to implement the ECN+ Directive, have been giving rise to some disquiet in Polish professional circles. One point of concern is the protection of privileged client-attorney communications, or LPP (legal professional privilege), in the context of dawn raids and document audits.

As it was until the last amendments, the Act did not elaborate on how, exactly, Office of Competition and Consumer Protection (UOKiK) staff ought to handle LPP documents discovered in the course of searches. Recourse was sought in the general rules, to wit arts. 225 and 226 of the Polish Criminal Process Code. From this perspective, then, the fact that the new Act expressly addresses this issue is a welcome development.

That said, some questions may arise as to:

(a)   The objective scope of LPP, specifically the question whether the protections are afforded only to outside counsel, or also to in-house lawyers (the Act extends protection to written communications “between the audited entity and a Polish advocate, Polish attorney, lawyer from the European Union independent of the audited entity”);

(b)  The right extended to the auditing officials to “peruse the document in a cursory manner which enables establishing the author, addressee, title, and subject of the document and the date of its drawing up”.

It merits pointing out that, in light of the new wording of the Act, UOKiK shall honour the privileged status only of correspondence between the audited business enterprise and a professional legal representative who is independent of the enterprise. We hope that practice might, in due course, reveal what this “independence” means. At the same time, we note that, in proceedings conducted by the European Commission, privilege extends only to documents passing between the enterprise and external counsel (please see the CJEU judgments in Akzo or in AM&S Europe).

On the face of it, restricting professional privilege to outside counsel only is less advantageous for businesses than UOKiK practice to date. We presume that the rationale informing this solution was to eliminate differences in LPP as applied by the European Commission and by UOKiK. It seems, then, that privilege will be accorded only to documents passing between the enterprise and external counsel, as long as:

– such documents contain professional secrets pertaining to the object of the proceedings at hand, and

– LPP is invoked in the course of the audit.

This leads us to the delicate issue of officials conducting a search being empowered to cursorily peruse a document with respect to which an LPP reservation is made by the enterprise. What, exactly, might “cursory” mean ? Looking without looking ?  To use a grammatically imperfect, but apposite turn of phrase, once the official has seen something as she glances through a document, she can’t unsee it… […]