When the Authority Has Already Read the Document, Is the Remedy Still Effective?
Competition authorities need effective investigative powers. Few would dispute that. Dawn raids and other intrusive investigative measures are indispensable tools of competition enforcement. But the more intrusive those powers are, the more important it becomes that they are accompanied by effective safeguards
A QUESTION OF TIMING
One such safeguard is legal professional privilege (“LPP”).
The basic principle is well established. Confidential communications between an undertaking and independent external counsel, made for the purposes of the undertaking’s rights of defence, are protected from disclosure to the competition authority.1 Yet an important procedural question remains in many jurisdictions: what happens when the investigating competition authority and the undertaking under investigation disagree on whether a particular document is protected by LPP?
The European Commission introduced an LPP dispute resolution mechanism, in which the Hearing Officer has an important role.2 An undertaking may refuse to allow Commission officials even a cursory examination of a document claimed to be privileged where such an examination would disclose its contents. Where the Commission does not accept the claim, the disputed material may be placed in a sealed envelope. If the Commission subsequently intends to access the material, it must adopt a specific decision and allow the undertaking an opportunity to seek interim judicial protection.3 However, the effectiveness of this system is imperfect, not least where vast amounts of data are seized and Commission officials may well have learned of the existence of, or glanced at, a document before deciding whether to seal it, or before the investigated company can obtain judicial protection. In practice, despite the pending privilege dispute, the potentially privileged materials might enable the Commission to ask targeted questions in requests for information (RFIs). This can undermine the effectiveness of LPP and the privilege dispute resolution mechanism. Therefore, companies should point out where RFIs seem to be rooted in privileged materials.4
Under the current Finnish system, the answer is even more problematic. The Finnish Competition and Consumer Authority (“FCCA”) may take the view that the document is not privileged, inspect it and potentially use it in its investigation. The legality of that assessment may then be finally determined only much later, in connection with proceedings concerning the substantive competition law infringement.5 By then, however, the FCCA may already have read the document.
This raises a simple but fundamental question: can a remedy be truly effective if it becomes available only after the confidentiality it is supposed to protect has already been lost?
MORE THAN A QUESTION OF ADMISSIBILITY
The issue is sometimes framed as one of evidence: if a privileged document has been wrongly obtained, can it later be excluded from the case file or disregarded by the court?
The CJEU’s decision in Akzo suggests so.6 But that misses an essential point.
LPP does not merely protect an undertaking against the eventual use of confidential legal advice as evidence. It protects the confidentiality of the lawyer-client relationship itself. Once the investigating authority has read the advice, the information has already been disclosed to the very authority from which it was intended to be protected.
A later court decision may prevent the document from being formally relied upon. It may acknowledge that the authority acted unlawfully. But it cannot make the authority “unread” what it has learned.
That is why timing matters.
The European Court of Human Rights has emphasised that safeguards protecting fundamental rights in competition investigations must be practical and effective rather than theoretical and illusory. In Vinci Construction and GTM Génie Civil et Services v France, the Court held that judicial review limited to the formal regularity of a seizure, without a detailed and document-specific assessment, was insufficient. The case is particularly relevant because the seizure had captured both material unrelated to the investigation and documents protected by legal professional privilege.7
The CJEU recently reinforced the importance of adequate safeguards in IMI – Imagens Médicas Integradas. The Court held that investigative powers affecting communications protected by Article 7 of the Charter must be accompanied by adequate and sufficient safeguards against abuse and arbitrariness. Judicial review must be capable of providing appropriate redress and allowing an assessment of the admissibility of the evidence obtained.8
These principles should prompt a closer examination of the effectiveness of LPP and related dispute resolution mechanisms in EU member states.
FINLAND: AUTHORITY DECIDES FIRST — THE COURT MAY DECIDE YEARS LATER
Section 38(3) of the Finnish Competition Act recognises LPP. An undertaking is not obliged to provide the FCCA with documentation containing confidential correspondence between an external legal adviser and the client where the statutory conditions are met. The provision is intended to be applied consistently with the CJEU’s case law on LPP.9
The difficulty lies in resolving disputes.
The Competition Act contains no specific mechanism for dealing with a live disagreement between the FCCA and the undertaking as to whether a particular document is privileged. If the FCCA considers the document unprotected and the undertaking disagrees, there is no procedure allowing the undertaking to obtain a prompt, independent judicial determination before the FCCA gains access to its contents. The question may instead be resolved only in the main proceedings, potentially years after the FCCA has inspected and used the document.10
The problem is not hypothetical.
In KHO:2019:98, the Supreme Administrative Court found that the FCCA had obtained and used documentation protected by LPP. Nevertheless, the Court concluded that the undertaking’s rights of defence had not been materially impaired. The documentation contained advice from an external law firm concerning the conduct under investigation, and the FCCA had used it to demonstrate that the cartel participants had intentionally acted against that advice.11
Whatever one’s view of the outcome in that case, it illustrates a broader structural problem. If privileged material can be inspected and used before an independent court determines whether it is privileged, the system necessarily relies on an ex post assessment of whether the undertaking has suffered sufficient prejudice.
But some consequences are inherently difficult to reverse – or even to measure. Once the authority has gained knowledge of confidential legal advice, how can the undertaking demonstrate the full consequences of that disclosure? The document may later be excluded, but the authority cannot be required to forget what it has learned.
FRANCE, GERMANY AND SWEDEN: WHAT WORKS?
The comparative picture makes the Finnish position more difficult to defend.
France and Sweden both provide mechanisms designed to resolve a live privilege dispute before the disputed material is used. In France, where an undertaking specifically identifies material claimed to be protected during the investigation, the disputed item is held under provisional closed seal (“scellé fermé provisoire”) offering the investigated companies a chance to identify the privilege files/documents and have them excluded before the seal becomes final. The use of provisional closed seal is not mandatory. It is not enshrined in a text but results from established practice12. If the dispute remains unresolved, it can either be raised “live” before the judge supervising the inspections (“juge des libertés et de la détention”) – whose live interventions are in practice rare – or through the subsequent appeal before the judicial courts, which is brought separately from, and well before, the final decision on the substantive infringement.13 While an appeal against the inspection has no suspensive effect, it will in practice generally delay the investigation, as the Authority tends to await the outcome before exploiting the seized material.
Sweden provides an even more explicit model. Where the Swedish Competition Authority and the undertaking disagree on whether a specific document is protected by attorney-client privilege, the document must be sealed and submitted to the Patent and Market Court for determination. The Swedish Supreme Court has also emphasised that denying effective judicial review of an investigative measure violates the right to have that measure reviewed by a court.14
Germany occupies a middle position. It provides undertakings with materially faster access to an independent court than the Finnish system does, allowing a court to examine the merits of a privilege dispute during the investigation. However, German law does not necessarily require the disputed material to be sealed or withheld from the Bundeskartellamt while that review is pending, unless legal privilege is evident,15 in which case the material must not be reviewed.16
EFFECTIVE PROTECTION MUST COME BEFORE DISCLOSURE
The solution need not be complicated, and it need not obstruct legitimate competition investigations.
Where an undertaking makes a specific and substantiated claim of LPP, the disputed material could be immediately segregated or sealed. An independent court could then determine, through an expedited procedure, whether the claim is well founded. If privilege does not apply, the FCCA could continue its investigation with access to the material. If it does apply, the confidentiality of the communication would have been genuinely preserved.
Such a mechanism would not give companies a licence to frustrate inspections through generic assertions of privilege. The French approach, for example, requires the undertaking to identify the specific material for which protection is claimed17. While the conversion of the provisional seal into a definitive seal by the French Competition Authority is subject to an adversarial phase (the investigated companies’ external counsel and a judicial police official (“officier de police judiciaire”) being present when the provisional closed seal is opened by the Authority), the Authority has the final say, subject either to the very rare “live” intervention of the Judge supervising the inspection or to a subsequent appeal.18 The purpose is not to place documents beyond the reach of the authority merely because privilege is asserted. It is to ensure that a genuine dispute over the confidentiality of legal advice is not conclusively determined by the investigating authority itself.
Effective enforcement and effective protection of fundamental rights are therefore not mutually exclusive.
A REMEDY THAT COMES TOO LATE IS NOT ENOUGH
The issue ultimately goes beyond LPP.
It concerns a more fundamental principle: when the state exercises intrusive investigative powers, judicial protection must be available at a point when it can still protect the right in question.
In Finland, the current framework leaves the investigated undertaking in a difficult position. The FCCA may gain access to material that the undertaking considers privileged, while an independent court may decide the legality of that access only much later, in the context of proceedings concerning the substantive competition law case.19
That sequence should be reconsidered.
LPP is a cornerstone of the rights of defence. Its protection should not depend exclusively on the investigating authority’s own assessment, followed by judicial review after the confidential information may already have been disclosed.
If the purpose of legal professional privilege is to prevent the investigating authority from gaining access to confidential legal advice, a remedy available only after the authority has read that advice risks being no remedy at all.
Finland should therefore introduce a prompt and effective route to independent judicial review of live disputes over legal professional privilege — before the confidentiality that privilege is designed to protect has been irreversibly lost.
REFERENCES
1. Case 155/79, AM & S Europe Limited v Commission of the European Communities [1982] ECR 1575, para 21; Case C-550/07 P, Akzo Nobel Chemicals and Akcros Chemicals v Commission, ECLI:EU:C:2010:512, para 40.
2. Decision of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings, https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32011D0695.
3. Joined Cases T-125/03 and T-253/03, Akzo Nobel Chemicals and Akcros Chemicals v Commission, paras 82, 83, 85 and 88; Commission Decision 2011/695/EU of 13 October 2011 on the function and terms of reference of the Hearing Officer in certain competition proceedings [2011] OJ L 275.
4. Cf. CJEU, Order of 27 September 2004 in Case C-7/04 P(R) para. 50 – Akzo.
5. Finnish Competition Act, section 38(3); Legal Professional Privilege in Finland, paras 10–12.
6. Cf. CJEU, Order of 27 September 2004 in Case C-7/04 P(R) paras. 50-52 – Akzo.
7. ECtHR, Vinci Construction and GTM Génie Civil et Services v France, nos 63629/10 and 60567/10, judgment of 2 April 2015.
8. Joined Cases C-258/23 to C-260/23, IMI – Imagens Médicas Integradas SA and Others v Autoridade da Concorrência, paras 71, 73, 105, 109, 111 and 120.
9. Finnish Competition Act, section 38(3); Government Proposal HE 88/2010 vp.
10. Legal Professional Privilege in Finland, para 12.
11. Supreme Administrative Court, KHO:2019:98, paras 764–765.
12. CA Paris, 11 March 2026, n° 23/08388.
13. Article L.450-4, French Commercial Code; Cass crim, 4 March 2020, no 18-84.071.
14. Swedish Competition Act (2008:579), Chapter 5, section 11; NJA 2018 s 936.
15. Funke, in: Berg/Mäsch, 5th ed (2025), § 59 GWB para. 7.
16. German Act against Restraints of Competition (Gesetz gegen Wettbewerbsbeschränkungen, “GWB”), section 59b with regard to inspections and the review of documents; Landgericht Bonn, 27 Qs 2/12, decision of 21 June 2012 on the seizure of documents which were not created upon the client’s request for the purpose of obtaining advice on its defence. Cf. Bundesverfassunsgericht, 2 BvR 1287/17, decision of 27 June 2018; Bundesverfassungsgericht, 2 BvR 306/03, decision of 1 July 2003, para. 7 regarding the prohibition to review where the applicability of legal privilege is evident; Funke, in: Berg/Mäsch, 5th ed (2025), § 59 GWB para. 7.
17. Cass crim, 4 March 2020, no 18-84.071.
18. CA Paris, 11 March 2026, n° 23/08388.
19. Legal Professional Privilege in Finland, paras 11–15.
Authors: Ilkka Aalto‑Setälä, Marie-Laure Combet and Thomas Funke
