The Court of First Instance held that only communications between a client and independent counsel could be covered by attorney-client privilege or legal professional privilege as it is known in Europe.
In Joined Cases T-125/03 and T-253/03 Akzo Nobel Chemicals and Akcros Chemicals v. Commission the Court of First Instance dismissed the claim that communications with employed lawyers should also be covered by the privilege.
What happened was this. The Commission ordered Akzo Nobel Chemicals Ltd and its subsidiary, Akcros Chemicals Ltd, to submit to an investigation in February 2003 seeking evidence of any anti-competitive practices. That investigation was carried out by Commission officials.
In the course of the investigation Akzo's representatives informed the Commission officials that certain documents were likely to be covered by the rule protecting the confidentiality of communications between lawyers and their clients. The head of the investigating team briefly examined the documents in question, with a representative of the applicants at her side. But, during the examination of the documents, a dispute arose in relation to five documents. Interestingly, some of the documents were exchanges between the general manager and Akzo Nobel’s coordinator for competition law, who was enrolled as an Advocaat of the Netherlands Bar and was a member of Akzo Nobel’s legal department, employed by that undertaking on a permanent basis.
Akzo claimed that those documents were covered by legal professional privilege because the lawyer involved was a member of the Bar even though he was a salaried employee of the company.
The Court of First Instance rejected the argument by Akzo Nobel and Akcros concerning extension of the personal scope of protection of confidentiality of communications between lawyers and their clients to include in-house counsel. It refused to go beyond the limits laid down by the Court of Justice in Case 155/79 AM & S v. Commission. The Court of Justice expressly held in that earlier case that the protection only applies to the extent that the lawyer is independent, that is to say, not bound to the client by a relationship of employment, and expressly excluded communications with in-house lawyers. The Court of First Instance states that, even though it is the case that specific recognition of the role of in-house lawyers and the protection of communications with such lawyers is relatively more common today than when AM & S was decided, it is not possible, nevertheless, to identify tendencies which are uniform or have clear majority support in that regard in the laws of the member States. The evolution of antitrust law since that judgment does not justify an alteration of that case-law: it is not contrary to the principle of equal treatment or the free movement of services. Consequently, the Court of First Instance held that the exchanges with a member of Akzo Nobel’s legal department should not be covered by the protection of confidentiality of communications between lawyers and their clients.
The Court of First Instance did however criticize the procedure used by the Commission investigators in the event of a dispute over whether a document is privileged or not. It held that the undertaking investigated cannot be compelled to reveal the contents of the documents in dispute when it presents the Commission officials with relevant material to demonstrate that they are privileged. The mere fact that the Commission reads the content of a privileged document is in itself a breach of the privilege in question. Thus, the Commission officials cannot take even a cursory look at the documents which are claimed to be privileged, if the undertaking considers that such a cursory look is impossible without revealing the content of those documents and that it gives the Commission officials appropriate reasons for its view. Where the Commission considers that the material presented by the undertaking is not of such a nature as to prove that the documents in question are privileged, its officials may place a copy of the document in question in a sealed envelope and then remove it with a view to a subsequent resolution of the dispute. The Court of First Instance further held that the Commission is not entitled to read the contents of the document before it has adopted a decision allowing the undertaking concerned to refer the matter effectively to the Court of First Instance.
Although the Court of First Instance found that the Commission's procedure was faulty, the outcome of the case was unaffected as the documents involved were not privileged in any event.
Finally, the Court of First Instance made some interesting comments about the types of privileged documents. Internal company documents, even if they have not been exchanged with counsel or have not been created for the purpose of being sent to counsel, may nonetheless be covered by protection of confidentiality of communications between lawyers and their clients, provided that they were drawn up exclusively for the purpose of seeking legal advice from a lawyer in exercise of the rights of defence. But the mere fact that a document has been discussed with a lawyer is not sufficient to give it such protection. The Court adds that the fact that a document has been put together under an antitrust law compliance program does not suffice by itself to confer protection on that document. Such programs often encompass in their scope duties and information which go beyond the exercise of the rights of defence.
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Posted by: Objessecefe | October 18, 2007 at 07:38 AM