Background
In January 2022, the Hordaland District Court issued a decision that authorised the Competition Authority to conduct a dawn raid and seize evidence at Kommunal Landspensjonskasse Mutual Insurance Company (“KLP”). The dawn raid was carried out in February 2022. The seizure included, among other things, electronic material produced by KLP’s in-house lawyers. The basis for the evidence collection was suspicion of abuse of dominance in violation of Section 11 of the Competition Act and Article 54 of the EEA Agreement.
On 20 June 2023, the Competition Authority requested the court’s decision regarding the scope of immunity from seizure. Section of the Competition Act 25 provides, among other things, that the inspected party shall receive a copy of the seized electronic material. When the Competition Authority begins the review of the material, the inspected party or its representative has the right to be present to clarify whether the material contains information covered by a confidentiality duty. The district court shall decide if the inspected party and the Competition Authority cannot agree.
KLP had prepared a list of lawyers (both in-house and external) who had produced documents that KLP believed were covered by confidentiality and thus immune from seizure. The Competition Authority accepted that four documents from an external law firm were immune from seizure. However, the Competition Authority’s right of access to 37 documents produced by in-house counsel was still disputed.
Thus, the core of the dispute before the District Court was the question of immunity from seizure for in-house lawyer correspondence when the Competition Authority enforces the EU/EEA competition rules.
According to settled case law, there is no doubt that the prohibition against seizure under internal Norwegian law includes correspondence from in-house counsel to the extent that the document is the result of work of such a nature that it must be regarded as “genuine legal services.” According to the District Court’s ruling, this applies also when the Norwegian Competition Authority enforces EEA competition law.
Summary of the Court’s assessment
The case addresses whether internal lawyer correspondence is protected from seizure when the Norwegian Competition Authority enforces Articles 53 and 54 of the EEA Agreement, which prohibit anti-competitive agreements and abuse of a dominant position, respectively.
The court first considered whether EEA law requires internal lawyer correspondence to be protected from seizure in such cases. According to EU/EEA law, the privilege of correspondence between a client and an external lawyer is recognised, but this protection does not extend to internal lawyers. The judge refers to the principle established in the Akzo Nobel ruling from the EU Court of Justice, which confirmed that internal lawyer correspondence does not enjoy legal professional privilege (LPP) in EU competition law enforcement.
However, the Court notes that Norwegian law allows for broader protection, including internal lawyer correspondence. The court acknowledges that this creates a divergence between national law and EU/EEA law. Still, it concludes that EEA law does not require member states to align their internal procedural rules on this issue when national authorities enforce EEA competition rules independently.
The court further evaluates the principle of procedural autonomy. This principle allows member states to apply national procedural rules unless EEA law explicitly provides otherwise. The court concludes that no clear requirement under EEA law would override Norway’s regulations on protecting internal lawyer correspondence. As such, Norwegian law’s protection of internal lawyer correspondence from seizure remains valid even in cases involving the enforcement of EEA competition rules.
In conclusion, the court rules that EEA law does not obligate national authorities, such as the Norwegian Competition Authority, to have access to internal lawyer correspondence when enforcing Articles 53 and 54 of the EEA Agreement. National procedural autonomy prevails, and the Norwegian rules protecting such correspondence do not violate EEA law.
Comment
The case is interesting because the Competition Authority seeks to broaden its powers when enforcing EU/EEA competition compared with national competition law.
The case is pending on appeal. Since the enforcement of national and EU/EEA competition law, for all practical purposes, takes place in parallel, in-house lawyers will be granted less protection than until now if the Competition Authority’s appeal is successful.
The Competition Authority has also requested that the Appeal Court request an advisory opinion from the EFTA Court regarding the interpretation of the relevant EEA law, hereunder regulation 1/2003. The Appeal Court is free to decide whether such a request shall be made or not.
Read the Court’s decision here