SUPREME ADMINISTRATIVE COURT OF LITHUANIA: PROTECTION OF LEGAL PROFESSIONAL PRIVILEGE IS NOT ABSOLUTE

The Supreme Administrative Court of Lithuania (Court) rejected the appeal of the company AV investicija and left unchanged the ruling of the court of first instance declaring that the Lithuanian competition authority was right in not applying the protection of legal professional privilege (LPP) to correspondence between two companies and their lawyer and not removing this information from the case material of an investigation.

The Court ruled that on 2 March 2021 Vilnius Regional Administrative Court properly assessed the circumstances of the case and adopted a legitimate decision. The court of first instance did not satisfy the complaint of AV investicija which sought to commit the competition authority to apply the protection of LPP to the correspondence between AV investicija and Transeco and the lawyer A. V. and remove this information from the available storage media.

The Court emphasised that the court of first instance rightly took into account the interpretations of the courts of the European Union concerning the confidentiality of communication between a lawyer and a client, which show that an essential condition for the application of the protection of LPP is the requirement of the independence of a lawyer.

Both courts upheld the decision of Konkurencijos taryba that in the present case there are no grounds to apply the protection of LPP to correspondence between the companies and their lawyer or to other documents related to their communication since A. V. holds a significant number of shares of the aforementioned companies, participates in their activities by voting at the shareholders’ meetings, therefore, may adopt important decisions on the economic commercial activity of the companies and form its strategy.

According to the Court’s panel of judges, the court of first instance examined in detail the circumstances related to the dependence of the relationship between AV investicija and A. V., therefore, it came to a reasonable conclusion that the relationship between the company and the lawyer could not be considered unconditionally independent. In view of the aforementioned, it has been ruled that the competition authority acted lawfully when it did not apply the legal guarantee laid down in the Law on the Bar to correspondence, and such measure is reasonable, essential and necessary in a democratic society and proportionate to the attainment of the objective pursued.

The documents relating to correspondence were taken by the competition authority during the inspection of the undertakings following the initiation of an investigation into suspected abuse of a dominant position. AV Investment and Transeco are not suspected of having committed an infringement.