The European Commission increasingly issues large document requests in complex merger cases. The number of requested documents has increased significantly in recent years, from a few hundred to several hundred thousand, in particular in Phase I or Phase II cases that raise substantial issues. If the document request is issued during the formal proceedings, the documents have to be submitted within a few weeks or, in some cases, even within a few days.
At the same time, internal documents are often key evidence in the Commission's assessment of the case. In several recent Phase II decisions reference to internal documents is made on more than 50 pages and in the recent Hutchison 3G Italy / WIND / JV decision internal documents are even referred to on almost 300 pages.
This development raises questions relating to due process, the parties' rights of defence and procedural fairness. One aspect concerns legal professional privilege (LPP).
The Commission regularly applies a narrow approach to LPP in merger cases. Commission case teams have, for instance, in several instances taken the view that legal advice from external counsel that is not related to competition proceedings is not protected by LPP. Such interpretation means that LPP cannot be claimed for preliminary advice in relation to alternative transactions (e.g. the contemplated acquisition of a competitor active in the same market) that have not (yet) been notified. In addition, detailed privilege logs are increasingly requested by the Commission. The parties have to justify their LPP claims in these privilege logs which can be highly burdensome and costly.
In my view, large document requests and tight procedural deadlines must not undermine the concept of LPP in merger cases. This is also as LPP has been recognized as a "general principle in the nature of a fundamental right" in EU case law. Rather, defining the exact scope of LPP in merger control needs to take into account the specific characteristics of the merger control procedure ("need for speed", large document volumes, regular involvement of economists in complex cases etc.).