Joined Cases T 125/03 and T 253/03, Akzo and Akcros

In 2003, Commission officials carried out an investigation at the applicants’ premises. Commission officials took copies of a considerable number of documents, but the applicants’ representatives informed the Commission officials that certain documents were likely to be covered by the protection of confidentiality of communications between lawyers and their clients (“legal professional privilege” or “LPP”).

Two months later, the Commission rejected an request by the applications for the return of the documents taken and for confirmation by the Commission that all copies of those documents in its possession had been destroyed.

The applicants subsequently sought, among others, an order to return the disputed documents and not to use their contents in any way.

They submitted that the Commission breached the principle of legal professional privilege and, in doing so, violated the EC Treaty and Regulation 17, arguing that the procedures relating to the application of LPP were infringed, that LPP was unjustifiably refused in relation to the five documents in question and, thirdly, that the fundamental rights which formed the basis of LPP were violated.

The Court held that the Commission infringed the procedure for protection under LPP, first, by forcing the applicants to allow a cursory look at some of the documents, and, secondly, by reading some of the other documents without having given the applicants the opportunity to contest the rejection of their claim to protection in respected of those documents before the Court of First Instance.

The Court reiterated much of the 1982 AM & S case (
ase 155/79, AM & S v Commission [1982]).

It held that where the Commission was not satisfied with the material and explanations provided by the representatives of the undertaking for the purposes of proving that the document concerned was covered by LPP, the Commission must not read the contents of the document before it had adopted a decision allowing the undertaking concerned to refer the matter to the Court of First Instance, and, if appropriate, to make an application for interim relief.

The fact that the Commission read the content of a confidential document was in itself a breach of the principle of LPP.

The protection of LPP therefore went beyond the requirement that information provided by an undertaking to its lawyer or the content of the advice given by that lawyer could not be used against it in a decision which penalised a breach of the competition rules

Protection under LPP also required the Commission, once it had adopted its decision rejecting a request under that head, not to read the content of the documents in question until it had given the undertaking concerned the opportunity to refer the matter to the Court of First Instance.

In that regard, the Commission was bound to wait until the time-limit for bringing an action against the rejection decision had expired before reading the contents of those documents.

In any event, to the extent that such an action did not had suspensory effect, it was for the undertaking concerned to bring an application for interim relief seeking suspension of operation of the decision rejecting the request for LPP.

The principle of LPP did not prevent a lawyer’s client from disclosing the written communications between them if he considered that it was in his interests to do so.

Principle of protection of confidentiality of written communications
The Court furthermore held that the principle of the protection of the confidentiality of written communications between lawyer and client was an essential corollary to the effective exercise of the rights of the defence.

Observance of the right to be heard was, in all proceedings in which sanctions, in particular fines or penalty payments, might be imposed, a fundamental principle of Community law which must be respected even if the proceedings in question were administrative proceedings.

Therefore, it was necessary to prevent those rights from being irremediably impaired during preliminary inquiry procedures, including, in particular, investigations which might be decisive in providing evidence of the unlawful nature of conduct engaged in by undertakings for which they might be liable.

LPP met the need to ensure that every person must be able, without constraint, to consult a lawyer whose profession entailed the giving of independent legal advice to all those in need of it. That principle was thus closely linked to the concept of the lawyer’s role as collaborating in the administration of justice by the courts.

However, it might be necessary, in certain circumstances, for the client to prepare working documents or summaries.

In those circumstances, the fact that the Commission read such documents during an investigation might well prejudice the rights of the defence of the undertaking under investigation and the public interest in ensuring that every client was able to consult his lawyer without constraint. On the other hand, the mere fact that a document had been discussed with a lawyer was not sufficient to give it such protection.

The Court concluded that the infringements on the part of the Commission found to have been committed during the procedure for examination of the documents for which the applicants claimed protection of LPP had not unlawfully deprived the applicants of that protection in respect of the disputed documents, since the Commission did not err in deciding that none of those documents fell within the scope of that protection.

Text of Judgment