EU Law and Practice Contributed by: Andrzej Kmiecik, Richard Burton and Catherine Gordley, Van Bael & Bellis
time. At the beginning of the investigation, employees should be notified to co-operate with the Commission and to ensure that no docu - ments or data are deleted or destroyed and that any seals the Commission places remain intact. An internal “shadow team” should be ready to carefully take note of all the items and informa - tion that are subject to investigation. 2.5 Obtaining Evidence/Testimony In addition to the possibility of seizing information during on-site surprise inspections, the Europe - an Commission may issue requests for informa- tion to companies, either by simple request or by formal decision. In the case of a simple request, the company is not legally obliged to respond, but if it does so it must provide full and correct information. In the case of a request made by formal decision, the company is legally obliged to respond to the request. As regards testimony, Regulation 1/2003 empowers the European Commission to con - duct interviews with any natural or legal persons (ie, an individual representing a company) pro - vided the person in question consents. During an inspection, the Commission may also ask for explanations of facts or documents relating to the subject matter of the investigation. Although this is not yet beyond doubt, the European Commission regards itself as being empowered to require a company located in the EU to provide evidence located outside the EU where that information is available at or from the premises of that entity (ie, the target of the inves - tigation has the power to procure it). Furthermore, the Commission considers that it has the power to issue requests for informa - tion to companies located outside the EU, and regularly does so in practice. If a request for
information is issued by formal decision, the Commission may impose fines if the requested information is not supplied within the specified timeframe, or if the reply is incorrect, incomplete or misleading. However, as a matter of EU law, it is not set - tled whether and how the Commission could enforce any such request or fine. In practice, where possible, the Commission will address such requests to both the foreign company and any subsidiary it has in the EU. 2.6 Attorney-Client and Other Privileges External Lawyers Under EU law, communications between a com - pany and an external lawyer entitled to practise in one of the EU member states benefit from legal privilege. This protection extends to inter - nal company documents summarising advice from an external lawyer, as well as to internal preparatory documents drawn up for the pur - pose of seeking external legal advice. The most recent case law from the CJEU has reaffirmed and strengthened the protection afforded to attorney-client privilege under EU law, making clear that such privilege rests on the right to pri - vacy (as well as the right to a fair trial) and that it covers all communications between an external lawyer and their client (irrespective of whether these are exchanged after an investigation has been initiated or are related to the subject matter
of the investigation). In-House Lawyers
Under EU law, legal privilege does not extend to communications between a company and its in-house lawyers, irrespective of whether the in- house lawyers are entitled to practise in one of the EU member states.
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