Judgments nº T-253/03 of Court of First Instance of the European Communities, September 17, 2007

Resolution DateSeptember 17, 2007
Issuing OrganizationCourt of First Instance of the European Communities
Decision NumberT-253/03

In Joined Cases T-125/03 and T-253/03,

Akzo Nobel Chemicals Ltd, established in Hersham, Walton on Thames, Surrey (United Kingdom),

Akcros Chemicals Ltd, established in Hersham, Walton on Thames, Surrey,

represented by † C. Swaak, M. Mollica and M. van der Woude, lawyers,

applicants,

supported by

The Council of the Bars and Law Societies of the European Union (CCBE), established in Brussels (Belgium), represented by J. Flynn QC,

by

Algemene Raad van de Nederlandse Orde van Advocaten, established in The Hague (Netherlands), represented by † O. Brouwer and C. Schillemans, lawyers,

by

European Company Lawyers Association (ECLA), established in Brussels, represented by M. Dolmans, K. Nordlander, lawyers, and J.†Temple Lang, solicitor,

by

American Corporate Counsel Association (ACCA) - European Chapter, established in Paris (France), represented by G.†Berrisch, lawyer, and D. Hull, solicitor,

and by

International Bar Association (IBA), established in London (United Kingdom), represented by J. Buhart, lawyer,

interveners,

v

Commission of the European Communities, represented initially by R. Wainwright and C. Ingen-Housz, and subsequently by F. Castillo de la Torre and X. Lewis, acting as Agents,

defendant,

APPLICATION, first, for the annulment of Commission decision C†(2003) 559/4 of 10 February 2003 and, so far as necessary, of Commission decision C†(2003) 85/4 of 30 January 2003 ordering Akzo Nobel Chemicals Ltd, Akcros Chemicals Ltd and Akcros Chemicals and their respective subsidiaries to submit to an investigation on the basis of Article 14(3) of Regulation No 17 of 6 February 1962, First Council Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition 1959-1962, p. 87) (Case COMP/E-1/38.589) and for an order requiring the Commission to return certain documents seized in the course of the investigation in question and not to use their contents (Case T-125/03) and, second, for the annulment of Commission decision C(2003) 1533 final of 8 May 2003 rejecting a request for the protection of those documents on grounds of legal professional privilege protecting communications between lawyers and their clients (Case T-253/03),

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (First Chamber, Extended Composition),

composed of J.†D. Cooke, President, R. GarcÌa-Valdecasas, I. Labucka, and M.†Prek and V. Ciuc-, Judges,

Registrar: † C. Kantza, Administrator,

having regard to the written procedure and further to the hearing on 28 June 2007,

gives the following

Judgment

Facts and procedure

1††††††††On 10 February 2003 the Commission adopted decision C (2003) 559/4, amending its decision C (2003) 85/4 of 30 January 2003, whereby the Commission ordered, inter alia, Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd and their respective subsidiaries to submit to an investigation on the basis of Article 14(3) of Regulation No 17 of 6 February 1962, First Council Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition 1959-1962, p. 87), aimed at seeking evidence of possible anti-competitive practices (together -the decision ordering the investigation-).

2††††††††On 12 and 13 February 2003, Commission officials, assisted by representatives of the Office of Fair Trading (-OFT-, the British competition authority), carried out an investigation on the basis of the decision ordering the investigation at the applicants- premises in Eccles, Manchester (United Kingdom). During the investigation the Commission officials took copies of a considerable number of documents.

3††††††††In the course of those operations 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-).

4††††††††The Commission officials then informed the applicants- representatives that it was necessary for them to examine briefly the documents in question so that they could form their own opinion as to whether the documents should be privileged. Following a long discussion, and after the Commission officials and the OFT officials had reminded the applicants- representatives of the consequences of obstructing investigations, it was decided that the leader of the investigating team would briefly examine the documents in question, with a representative of the applicants at her side.

5††††††††During the examination of the documents in question, a dispute arose in relation to five documents which were ultimately treated in two different ways by the Commission.

6††††††††The first of those documents is a two-page typewritten memorandum dated 16 February 2000 from the general manager of Akcros Chemicals to one of his superiors. According to the applicants, this memorandum contains information gathered by the general manager in the course of internal discussions with other employees. The information was gathered for the purpose of obtaining outside legal advice in connection with the competition law compliance programme put in place by Akzo Nobel. The second document is a second copy of the memorandum, bearing manuscript notes referring to contacts with a lawyer of the applicants, including, in particular, mention of his name.

7††††††††After obtaining the applicants- observations concerning those first two documents, the Commission officials were not in a position to reach a final conclusion on the spot as to whether the documents should be privileged. They therefore took copies of them and placed them in a sealed envelope which they took away on completion of the investigation. The applicants identified the two documents as -Set A-.

8††††††††The third document which gave rise to a dispute consists of a number of handwritten notes made by Akcros Chemicals- general manager, which are said by the applicants to have been written during discussions with employees and used for the purpose of preparing the typewritten memorandum of Set A. Finally, the last two documents in issue are two e-mails, exchanged between Akcros Chemicals- general manager and Mr S., Akzo Nobel-s coordinator for competition law. The latter is enrolled as an Advocaat of the Netherlands Bar and, at the material time, was a member of Akzo Nobel-s legal department and was therefore employed by that undertaking on a permanent basis.

9††††††††After examining the last three documents and obtaining the applicants- observations, the head of the investigating team took the view that they were definitely not privileged. Consequently, she took copies of them and placed the copies with the rest of the file, without isolating them in a sealed envelope. The applicants identified the three documents as -Set B-.

10††††††On 17 February 2003 the applicants sent the Commission a letter setting out the reasons why, in their view, the documents in Set A and Set B were protected by LPP.

11††††††By letter of 1 April 2003, the Commission informed the applicants that the arguments set forth in their letter of 17 February 2003 were insufficient to show that the documents in question were covered by LPP. However, the Commission pointed out that the applicants could submit observations on those provisional conclusions within two weeks, after which the Commission would adopt a final decision.

12††††††By application lodged at the Registry of the Court of First Instance on 11 April 2003, the applicants brought an action under the fourth paragraph of Article 230 EC seeking, first, the annulment of the decision of 10 February 2003 and, so far as necessary, the decision of 30 January 2003 and, second, the return of the disputed documents (Case T-125/03).

13††††††On 17 April 2003 the applicants informed the Commission that they had lodged their application in Case T-125/03. They also stated that the observations which they had been asked to submit on 1 April 2003 were contained in that application. On the same day the applicants lodged an application on the basis of Articles 242 EC and 243 EC for, in particular, suspension of the operation of the decision of 10 February 2003 (Case T-125/03 R).

14††††††On 8 May 2003 the Commission adopted decision C (2003) 1533 final concerning a claim of legal privilege in the context of an investigation pursuant to Article 14(3) of Regulation No 17 (-the rejection decision of 8 May 2003-). In Article 1 of that decision the Commission rejects the applicants- request for the return of the documents in Set A and Set B and for confirmation by the Commission that all copies of those documents in its possession had been destroyed. In Article 2 of the decision the Commission gives notice of its intention to open the sealed envelope containing the documents of Set A and to add them to the file. The Commission states, however, that it will not undertake this before expiry of the time-limit for bringing an action against the decision.

15††††††By application lodged at the Registry of the Court of First Instance on 4 July 2003, the applicants brought an action under the fourth paragraph of Article 230 EC for the annulment of the rejection decision of 8 May 2003 (Case T-253/03). By separate document received on 11 July 2003 the applicants lodged an application for interim relief seeking, in particular, suspension of the operation of that decision (Case T-253/03 R).

16††††††By applications lodged on 30 July, 7 August and 11 and 18 August 2003 respectively, the Council of the Bars and Law Societies of the European Union (CCBE), the Algemene Raad van de Nederlandse Orde van Advocaten (-General Council of the Netherlands Bar-) and the European Company Lawyers Association (ECLA) applied to intervene in Cases T-125/03 and T-253/03 in support of the form of order sought by the applicants. These associations were granted leave to intervene by two orders of the President of the Fifth Chamber of 4 November 2003.

17††††††By separate document lodged at the Court Registry on 1...

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