Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd v European Commission.

• Jurisdiction: European Union
• Celex Number: 62007CC0550
• ECLI: ECLI:EU:C:2010:229
• Docket Number: C-550/07
• Date: 29 April 2010
• Court: Court of Justice (European Union)
• Procedure Type: Recurso de casación - infundado

OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 29 April 2010 ¹(1)

Case C‑550/07 P

Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd

v

European Commission

(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)

I – Introduction

1. Does the protection of communications between lawyers and their clients (‘legal professional privilege’), (2) guaranteed as a fundamental right under the law of the European Union, also extend to internal exchanges of opinions and information between the management of an undertaking and an ‘enrolled in-house lawyer’ employed by that undertaking? (3) That, in essence, is the question which the Court has been asked to resolve in this appeal. (4) It has a practical significance for the future application and implementation of European competition law which cannot be underestimated and has lost none of its relevance even after the modernisation of the law governing antitrust proceedings carried out by Council Regulation (EC) No 1/2003. (5)

2. The background to this case is formed by a search (an ‘investigation’ or ‘inspection’) conducted by the European Commission, as competition authority, in February 2003 at the business premises of Akzo Nobel Chemicals Ltd (Akzo) and Akcros Chemicals Ltd (Akcros) in the United Kingdom. (6) In the course of that search, the Commission officials took photocopies of certain documents which the representatives of Akzo and Akcros regarded as being exempt from seizure because, in their view, they were covered by legal professional privilege.

3. This gave rise to a legal dispute between the two companies concerned and the Commission. Akzo and Akcros brought proceedings before the Court of First Instance (now: ‘the General Court’) against, on the one hand, the Commission’s decision ordering the investigation and, on the other hand, the Commission’s decision to place a number of disputed documents on the file. By judgment of 17 September 2007 (7) (‘the judgment under appeal’), the General Court dismissed the first action as inadmissible and the second action as unfounded.

4. This appeal is concerned exclusively with the question whether the General Court was justified in dismissing the second action as unfounded. At this stage of the proceedings, only two of the disputed documents remain of interest. These are printouts of emails between the general manager of Akcros and an employee of Akzo’s in-house legal department who was also a member of the Netherlands Bar.

II – Legal context

5. The legal context of this case is defined by Regulation No 17, (8) Article 14 of which reads as follows:

‘(1) In carrying out the duties assigned to it by Article [105 TFEU] and by provisions adopted under Article [103 TFEU], the Commission may undertake all necessary investigations into undertakings and associations of undertakings.

To this end the officials authorised by the Commission are empowered:

(a) to examine the books and other business records;

(b) to take copies of or extracts from the books or business records;

(c) to ask for oral explanations on the spot;

(d) to enter any premises, land and means of transport of undertakings.

(2) The officials of the Commission authorised for the purpose of these investigations shall exercise their powers upon production of an authorisation in writing …

(3) Undertakings and associations of undertakings shall submit to investigations ordered by decision of the Commission. The decision shall specify the subject matter and purpose of the investigation …

…’

6. Regulation No 1/2003, which modernised the European law on antitrust proceedings and replaced Regulation No 17, is not applicable to this case, since the material facts took place before 1 May 2004. (9)

III – Background to the dispute

A – The investigations conducted by the Commission and their administrative consequences

7. As the General Court’s findings of fact show, (10) the background to this dispute is an investigation conducted by the European Commission in its capacity as competition authority. In early 2003, the Commission, by a decision (11) under Article 14(3) of Regulation No 17, ordered an investigation to be carried out at the premises of Akzo and Akcros as well as at their subsidiaries in order to safeguard evidence of possible anti-competitive practices (‘the decision ordering the investigation’). The companies concerned were required by that decision to submit to those investigations.

8. On the basis of the decision ordering the investigation, on 12 and 13 February 2003, Commission officials, assisted by representatives of the Office of Fair Trading (OFT), (12) carried out an investigation at the premises of Akzo and Akcros in Eccles, Manchester (United Kingdom). (13) During the investigation, the Commission officials took photocopies of a considerable number of documents.

9. In the course of those operations, the representatives of Akzo and Akcros informed the Commission officials that certain documents were likely to be covered by the protection of confidentiality of communications between lawyers and their clients. The Commission officials replied 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 representatives of Akzo and Akcros 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 Akzo and Akcros at her side.

10. During the examination of the documents in question, a dispute arose in relation to various documents which the General Court – on the basis of the submissions advanced by Akzo and Akcros – classified into two categories of documents (‘Set A’ and ‘Set B’).

11. Set A consists of two documents. The first of those two documents is a two-page, typewritten memorandum dated 16 February 2000 from the general manager of Akcros to one of his superiors. According to the appellants, 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. The second document is another copy of the memorandum, but bears manuscript notes referring to contacts with a lawyer used by Akzo and Akcros, including, in particular, mention of his name.

12. After obtaining the appellants’ 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.

13. Set B likewise comprises several documents. These are, on the one hand, a number of handwritten notes made by Akcros’ general manager, which are said by the appellants to have been written during discussions with employees and used for the purpose of preparing the typewritten memorandum in Set A and, on the other hand, two emails exchanged between Akcros’ general manager and Mr S., Akzo’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 the Akzo group’s legal department and was therefore employed by that group on a permanent basis.

14. After examining the documents in Set B and obtaining the observations of Akzo and Akcros, 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.

15. On 17 February 2003, Akzo and Akcros sent the Commission a letter setting out the reasons why, in their view, the documents in Set A and Set B were protected by legal professional privilege. By letter of 1 April 2003, the Commission informed the undertakings concerned that the arguments put forward by them in their letter of 17 February 2003 were insufficient to show that the documents in question were covered by legal professional privilege. However, the Commission gave them the opportunity to submit observations on those provisional conclusions within two weeks, after which it would adopt a final decision.

16. By decision of 8 May 2003, (14) the Commission refused to recognise the claim of Akzo and Akcros to legal professional privilege in respect of the documents in dispute (‘the rejection decision’). In Article 1 of that decision, the Commission rejects the request by Akzo and Akcros that the documents in Set A and Set B be returned and that the Commission confirm that all copies of those documents in its possession had been destroyed. In Article 2 of the rejection decision, the Commission announces its intention to open the sealed envelope containing the documents in Set A and to add them to file, although it points out that it will not undertake this before expiry of the time-limit for bringing an action against the decision.

B – The court proceedings

1. The proceedings at first instance

17. Akzo and Akcros together brought two actions for annulment before the General Court, one against the decision ordering the investigation (15) (Case T‑125/03) and the other against the rejection decision (16) (Case...