According to The Code of Conduct for Danish lawyers, the concept of confidentiality is founded in the rule of law. It is a necessary part of legal practice and a fundamental duty and right to be respected, in the interests of individual clients as well as being a matter of public interest.
Confidentiality between lawyer and client is therefore a general principle of Danish law, but it is not a statutory privilege in all areas of the law. As regards the area of competition law, legal professional privilege is based on practices and soft law from the Danish competition authorities.
Legal professional privilege in the context of investigations by the Danish competition authority
In the context of competition law, legal professional privilege is subject to two different sets of rules, as competition law is enforced by two separate authorities. In criminal litigation, special rules regarding legal professional privilege apply. Within the area of administrative competition law, the principles of EU case law on legal professional privilege apply.
Competition law infringements in Denmark are subject to both criminal sanctions including fines and imprisonment and administrative fines. Following implementation of ECN+, the Danish Competition and Consumer Authority (“DCCA”) has the authority to impose administrative fines, while individuals are prosecuted by the police.
The Danish concept of legal professional privilege in the context of competition law cases is therefore based on (1); legal professional privilege subject to EU case law and applied by the DCCA in administrative cases, and (2) confidentiality privilege under criminal law applied by the State Prosecutor for Serious Economic and International Crime (“SEIC”) in criminal cases.
The DCCA has the power to acquire information pursuant to sections 17 and 18 of the Danish Competition Act (concerning requests for information and unannounced inspections, i.e. dawn raids). The authority’s actions are administrative coercive measures and are regulated by the Danish Act for Administrative Coercive Measures supplemented by EU case law on legal professional privilege (Lov om retssikkerhed ved forvaltningens anvendelse af tvangsindgreb og oplysningspligter).
In complex cases, the DCCA will often choose to conduct its own investigation and issue behavioural orders concerning any infringement, e.g. cease-and-desist orders. Such orders are subject to appeal.
Legal professional privilege in administrative cases is not expressly set out in Danish legislation. However, the DCCA has issued guidelines on carrying out dawn raids and it follows from the guidelines that the DCCA recognises legal professional privilege. According to certain publications the DCCA adheres to EU case law on legal professional privilege.
If a dispute arises during an inspection as to whether a document is covered by legal professional privilege, the DCCA will act in accordance with its dawn raid guidelines. Contested documents are placed and sealed in a briefcase for individual evaluation after the dawn raid has taken place. For electronic documents, the DCCA will make copies and store them on special hard drives for later review. The hard drives containing the copied data are sealed and placed in a locked safe in a specially secured investigation room at the DCCA. The entity under investigation or its representative (e.g. an external lawyer) is invited to witness when the seal on the copied hard drives is broken and to attend the subsequent search. During the search, the entity or its lawyers can specify which electronic documents it considers to be covered by legal professional privilege. These documents will be tagged and excluded from future searches. After completion of the search, the DCCA issues a report to the undertaking under investigation containing a list of documents tagged as potentially subject to privilege. The entity must explain the basis on which it claims privilege for such documents. If the entity and the DCCA are unable to agree on which documents are to be included in the case, the DCCA will issue a written decision on the matter. A party may apply to stay and appeal the DCCA's decision.
Legal professional privilege in the context of civil litigation
In Danish civil litigation it is generally a matter for the parties to decide what information they wish to disclose. If a party requests information to be disclosed, the other party is entitled to refuse the request and accept the procedural consequences of not submitting information.
For competition law cases, the damages directive has been implemented in Danish law. As a result, the provisions in The Administration of Justice Act regarding discovery of documents in civil litigation apply. Accordingly, all documents and information are exempt from disclosure if they originate from persons who are exempt from giving testimony in civil litigation under witness exemption rules in The Administration of Justice Act. This encompasses advice received from a lawyer including in-house counsel.