Changes to legal professional privilege and trade secret protection in Poland

An amendment to the Act on Competition and Consumer Protection (ACCP) entered into force on 20 May 2023. The main purpose of the amendment is to implement Directive 2019/1 of the European Parliament and of the Council (EU) of 11 December 2018. Among the many changes introduced by the amendment, the issue of legal professional privilege and trade secrets deserves special attention.

Who is affected?

The changes to legal professional privilege and trade secrets introduced by the Competition and Consumer Protection (Amendment) Bill should be of particular interest to businesses of all sizes and their legal advisers. 

What has changed?

The most important changes to the ACCP concern:

• The Office of Competition and Consumer Protection (OCCP) will be able to inspect documents covered by legal professional privilege. OCCP officials will be able to conduct a "cursory review" of materials (correspondence, documents, files, etc.) for which the entrepreneur declares that they contain legal professional privilege content;
• In addition to the possibility of a 'cursory review', the OCCP officer may request additional oral explanations of the submission and the production of a version of the document that does not contain proprietary information;
• The limited protection of secrecy is due to the need to leave documents at the place of search;
• If the OCCP employee believes that the entrepreneur's statement is questionable, he or she may submit the documents to the Competition and Consumer Protection Court. The entrepreneur bears the burden of proof that the documents are covered by legal professional privilege;
• The amendment confirms the previous practice the OCCP applied to legal professional privilege. Only legal assistance provided by external lawyers will be protected by legal professional privilege privilege; it will not apply to in-house lawyers;

Refusal to provide information can result in a fine of up to 3% of an operator's annual turnover.

• Regulation goes beyond the transposed Directive. The provision on access to documents covered by legal professional privilege is not based on any provision of the transposed Directive.
• It reduces the scope of trade secret protection. The new ACCP amendments reduce the protection of trade secrets and will affect the way entrepreneurs communicate with the OCCP.

Why do you need to be interested in this?

• The changes introduced may require entrepreneurs to adjust the way they communicate with the OCCP and their legal advisers.
• Entrepreneurs should remember to file motions to limit third-party access to case files in the OCCP due to the inclusion of company secrets.
• It is advisable to develop or adapt appropriate procedures in the event of an inspection.
• The amendment shows the Polish legislator's tendency to tighten competition and consumer regulations.