ECJ (Opinion) Appeal Competition – Administrative procedure – Commission’s powers of investigation – Documents copied in the course of an investigation and later placed on the file – Protection of confidentiality of communications between lawyers and their clients (‘legal professional privilege’) – Internal group correspondence with an in-house lawyer – In-house lawyer admitted to a Bar or Law Society Article 14 of Regulation (EEC) No 17 Regulation (EC) No 1/2003.
The court was asked whether legal professional privilege was available to a company’s in-house lawyer in a Commission investigation. The Commission had exercised a search order on premises occupied by ANC in the UK, taking documents (two emails) for which privilege was now claimed. The ECFI had found the documents not protected. National and international law associations sought leave to make representations.
Held: Legal professional privilege could not be claimed under EU law by an employed lawyer over advice to his employer.
The interventions were proper: ‘Any breach of legal professional privilege during an investigation represents a serious interference with a fundamental right which is committed not when the Commission actually relies on a document exempt from seizure in a substantive decision but as soon as a Commission official removes a document or takes a copy of it.’ In EU law, the protection of legal professional privilege has the status of a general legal principle in the nature of a fundamental right.
The privilege as described in A M and S was directly related to the independence of the lawyer from his client. That facet is missing for an in-house lawyer, independence being designated by an absence of an emloyment relationship. Professional regulation cannot guarantee equal independence for an employee. That element of the claimant’s argument failed, and it was not appropriate to extend legal professional privilege to internal company or group communications with enrolled in-house lawyers.
Such privilege does not typically apply outside common law countries. The case of AM and S has not led to changes in such a range of EU countries as to require privilege to be extended to in-house lawyers as an EU rule. For example, money laundering privileges for legal professionals were restricted to exclude in-house lawyers.
The principle of uniformity required similar treatment across member states, and could not be dictated by members states.
Judges:
Advocate General Kokott
Citations:
C-550/07, [2010] EUECJ C-550/07 – O
Links:
Jurisdiction:
European
Citing:
See Also – Akzo Nobel Chemicals and Akcros Chemicals v Commission (Order) ECFI 30-Oct-2003
Europa Interim measures – Competition – Commission’s powers of investigation – Protection of confidentiality – Communications between lawyers and clients – Limits. . .
Appeal from – Akzo Nobel Chemicals and Akcros Chemicals v Commission ECFI 17-Sep-2007
Competition – Administrative procedure – Commission’s powers of investigation – Documents seized in the course of an investigation – Legal professional privilege protecting communications between lawyers and their clients – Admissibility. . .
See Also – Akzo Nobel Chemicals and Akcros Chemicals v Commission ECFI 28-May-2004
(Order) . .
See Also – Commission v Akzo and Akcros ECJ 27-Sep-2004
. .
Cited – AM and S Europe Ltd v Commission of The European Communities ECJ 18-May-1982
The court set out the rationale for legal professional privilege: ‘Whether it is described as the right of the client or the duty of the lawyer, this principle has nothing to do with the protection or privilege of the lawyer. It springs essentially . .
Cited by:
Opinion – Akzo Nobel Chemicals and Akcros Chemicals v Commission and Others ECJ 14-Sep-2010
ECJ Appeal – Competition – Measures of inquiry – Commission’s powers of investigation – Legal professional privilege – Employment relationship between a lawyer and an undertaking – Exchanges of e-mails. . .
Lists of cited by and citing cases may be incomplete.
Legal Professions
Updated: 07 April 2022; Ref: scu.410773