Le Président
The President

Via facsimile to:
The Office of Examination of AntiMonopoly Act Investigation Procedures
Cabinet Office
Government of Japan+81-3216-3715

Brussels, 8 July 2014
Re: Attorney-Client-Privilege in Japan

To whom it may concern,
I am writing to you on behalf of the Council of Bars and Law Societies of Europe (CCBE)
which represents the bars and law societies of 32 member countries and 13 further associate
and observer countries, and through them more than 1 million European lawyers.
The CCBE acts as the liaison between the EU and Europe’s national bars and law societies.
The CCBE has regular institutional contacts with the relevant interlocutors within theEuropean Commission, the European Parliament and the Council of the EU. It also liaises
with the Court of Justice of the European Union and the European Court of Human Rights,
both of which have accepted the CCBE as an intervener in cases to represent the interestsof the legal profession in Europe.
The Japan Federation of Bar Associations (JFBA) has recently drawn the CCBE’s attention
to the work of an expert group - formed by the Japanese Prime Minister’s Cabinet Officeearlier this year - which has been considering the due process of investigations under the
Anti-Monopoly Act including ‘attorney-client privilege’. Currently all lawyers, including foreign
lawyers practicing in Japan, are subject to professional duties of confidentiality. However,clients do not have the right to communicate confidentially with lawyers, including foreign
lawyers practicing in Japan. In addition, legal advice is not excluded from document
production orders and authorities may use the contents of legal advice as evidence to provea breach of law, for example.
It has also been pointed out to the CCBE that in response to a recent consultation on issues
discussed by the expert group, the Japan Fair Trade Commission, which is the government
agency in charge of enforcing the Anti-Monopoly Act, has argued, inter alia, that therecognition of ‘attorney-client privilege’ impedes fact findings.
The business community in Japan and the JFBA have expressed their concerns about thelack of ‘attorney-client privilege’ and the current discussions, as well as the views which were
put forward by the Japan Fair Trade Commission.
In this respect, the CCBE would like to submit a number of comments which are set out
below. With regard to the fact that current discussions in Japan also affect European lawyers
practicing in Japan, the CCBE believes it important that Japanese authorities are aware of
the legal situation in Europe.
Conseil des barreaux européens – Council of Bars and Law Societies of Europe
association internationale sans but lucratif - RPM Bruxelles 0.467.250.186
Rue Joseph II, 40/8 – B 1000 Brussels – Belgium – Tel.+32 (0)2 234 65 10 – Fax.+32 (0)2 234 65 11 – E-mail ccbe@ccbe.eu – www.ccbe.eu

Professional secrecy/legal professional privilege (PS-LPP) is one of the core values of theEuropean legal profession. (It is important to point out in this context that there are
distinctions between common law concepts of legal professional privilege and continental
concepts of professional secrecy, but in essence these concepts provide for the same
protection.) It is a common understanding that if the right of the citizen to safeguard
confidentiality, i.e. the right of the citizen to be protected against any divulging of his/hercommunication with his/her lawyer, would be denied, people may be denied access to legal
advice and to justice. PS-LPP is thus seen as an instrument of how access to justice and themaintenance of the rule of law can be achieved.
There is abundant jurisprudence by the European courts both in Luxembourg and Strasbourgthat deals with PS-LPP and highlights the importance of this principle. European legal
instruments have also enshrined PS-LPP. Additionally, all EU Member States recognise PSLPP as one of the major objectives and principles of regulation for the legal profession, theviolation of which constitutes in some EU Member States not only a professional violation,
but also a criminal offence. Moreover, the CCBE in its own CCBE Charter of Core Principlesof the European Legal Profession, the CCBE Code of Conduct for European Lawyers andnumerous other documents stipulates PS-LPP as one of the core values of the European
legal profession. Key decisions of the European courts, relevant European legal instruments
as well as the CCBE’s own documents are referred to in more detail below.
A. CASE LAW AND EUROPEAN LEGAL INSTRUMENTS

Court of Justice of the European Union (CJEU)
General principles on the scope of LPP
The investigative powers of the European Commission (Commission) in competition
matters – in particular, concerning on-site inspections and requests for information – mayinterfere with the companies’ fundamental right to the confidentiality of certain
communications with legal counsel. Regulation 1/2003, which establishes the procedural
framework for the Commission’s enforcement of the EU competition rules, contains, likeits predecessor Regulation 17/62, no provision dealing with the protection of written
lawyer-client communications.
Scope of legal privilege: the AM&S and Hilti cases
In the AM&S v. Commission case, the Court of Justice of the European Union (CJEU)
acknowledged that the maintenance of confidentiality as regards certain communications
between lawyer and client constitutes a general principle of law common to the laws of all
Member States and, as such, a fundamental right protected by EC law.1 The Court heldthat “any person must be able, without constraint, to consult a lawyer whose profession
entails the giving of independent legal advice to all those in need of it”, and that,
therefore, the confidentiality of certain lawyer-client communications must be protected.2
LPP can be relied upon not only by natural persons, but also by companies that may besubject to a Commission investigation, regardless of their legal form. It covers all
documents in the hands of the lawyer or the client and applies to communications
originating from either.

1

Case 155/79, AM & S / Commission, 1982 ECR 1575, paras 16 and 18.
Ibid. Although AM&S was concerned with inspections, it has been generally acknowledged that the principles established in that case also
apply to Commission’s requests for information. AM&S originated in a dispute about the confidentiality of a series of documents whichwere found at the premises of AM&S - a UK company - during an investigation into a cartel. The company withheld some of the documents
on grounds that they were privileged written communications between lawyer and client. The European Commission issued a decision
requiring AM&S to produce these documents.
2

The CJEU’s decision was of particular importance, and still is, since it confirmed theprotection of privileged communication (which was disputed up until 19783) and it defined
the scope of legal privilege and its practical implications. The CJEU noted that PS-LPP isclosely linked to the concept of the lawyer’s role as collaborating in the administration ofjustice by the courts4. The CCBE intervened in the case in support of the applicant.
In AM&S the CJEU defined the scope of LPP in the European Community system, on thebasis of the legal traditions common to the Member States. It interpreted Regulation 17
as protecting the confidentiality of written communications between a lawyer and his or
her clients, subject to two conditions, incorporating such elements of that protection as
were found to be common to the Member States’ laws in 1982, namely that such
communications: (i) are made for the purposes and in the interests of the client’s rights ofdefence, and (ii) emanate from independent lawyers who are qualified to practice in an
EEA country5.
(i) With regard to the first requirement, the CJEU emphasized that it must be ensured thatthe rights of defence may be exercised in full in the context of the Commission’s
investigation proceedings, and that the protection of the confidentiality of written lawyerclient communications is an essential corollary to the rights of defence. It therefore
recognized that all written communications exchanged after the initiation of theproceedings must be protected. However, since the Commission can commence aninvestigation before the formal initiation of proceedings, the Court held that – in order not
to discourage any undertaking from taking legal advice at the earliest opportunity – theprotection of LPP extends to any earlier written communications that have a relationshipto the subject-matter of that procedure6. Legal advice is regarded as a “preparatory” stepin the undertaking’s defense7.
Moreover, in the later Hilti case the General Court of the European Union (GCEU),
adjudicating at first instance, established that any internal documents of the company
being investigated, which reported the content of communications and legal advice
received by independent external lawyers and were distributed within the undertaking forconsideration by managerial staff, are still covered by LPP, too.8

3

In 1978, following a written question by MEP Cousté (No. 63/78), the Commission stated that even though Regulation No 17 did notprovide for any protection of legal papers, “the Commission […] follows the rules in the competition law of certain Member States and iswilling not to use as evidence of infringements of the Community competition rules any strictly legal papers with a view to seeking or giving
opinions on points of law to be observed or relating to the preparation or planning of the defence.”
4
Case 155/79, para 24: As regards the second condition, it should be stated that the requirement as to the position and status as anindependent lawyer, which must be fulfilled by the legal adviser from whom the written communications which may be protectedemanate, is based on a conception of the lawyer' s role as collaborating in the administration of justice by the courts and as being
required to provide, in full independence, and in the overriding interests of that cause, such legal assistance as the client needs. The
counterpart of that protection lies in the rules of professional ethics and discipline which are laid down and enforced in the generalinterest by institutions endowed with the requisite powers for that purpose. Such a conception reflects the legal traditions common
to the Member States and is also to be found in legal order of the community, as is demonstrated by article 17 of the protocols on
the statutes of the court of justice of the EEC and the EAEC, and also by article 20 of the protocol on the statute of the Court ofJustice of the ECSC.
5The European Economic Area (EEA), established in 1994, comprises three of four member states of the European Free Trade Association(EFTA) (Iceland, Liechtenstein and Norway),and 27 of the 28 Member States of the European Union, with Croatia provisionally applying theagreement pending its ratification by all EEA countries.
6
The Court seemed to adopt a rather broad interpretation of the concept of “earlier written communication” by establishing that
communications exchanged six years prior to the initiation of the Commission’s proceedings were in fact sufficiently connected to thesubject-matter of those proceedings. It follows that advice given by legal counsel prior to the initiation of an investigation, concerning thelegal assessment of a company’s conduct, including the likelihood of prosecution and fines, or advice given in relation to potential interim
measures, should be covered by LPP.
7
Fordham International Law Journal, Volume 28, Issue 4, page 1009, 2004.
8
Case T-30/89 Hilti/Commission 1990 ECR II-163, para 18 (stating that “the principle of the protection of written communications between
lawyer and client must, in view of its purpose, be regarded as extending also to the internal notes, which are confined to reporting the text
or the content of those communications”).

(ii) Pursuant to the second requirement established in AM&S, LPP applies only to written
communications emanating from independent lawyers who are entitled to practice theirprofession in one of the Member States, regardless of whether this is the same Member
State in which the client resides.9 This means that, by definition, communications
involving lawyers qualified in third countries such as the United States will not be
privileged, even if those lawyers are based in the EC.
Moreover, the notion of “independent lawyer” does not encompass, in the Court’s view,
any legal expert who is bound to his or her client by a relationship of employment 10. The
Court found that this requirement, as to the position and status of a legal adviser, isbased on the “conception of the lawyer’s role as collaborating in the administration ofjustice by the courts and as being required to provide, in full independence, and in theoverriding interests of that cause, such legal assistance as the client needs”.11 Despite its
reference to “the rules of professional ethics and discipline which are laid down in andenforced in the general interest by institutions endowed with the requisite powers for that
purpose” as being the counterpart of the protection of LPP, the Court held in AM&S that,based on common criteria found in the national laws of the Member States, a document
containing legal advice and exchanged between a lawyer and his or her client is
protected against disclosure only if the lawyer is ‘independent’, “that is to say one who is
not bound to his client by a relationship of employment”.12
The exclusion of in-house lawyers from the scope of application of the LPP as confirmedin the Akzo Nobel case
The more recent Akzo case gave the EU Courts another opportunity to deal with theissue of the protection of confidentiality of communications between lawyers and clientsvis-à-vis the Commission’s exercise of its powers of investigation, in particular thequestion of whether LPP also extends to in-house counsel. In an order delivered on
October 30, 2003, the President of the GCEU seemed to suggest that the Court might beprepared to review the scope of legal privilege under EU competition rules and extend it
to communications with in-house counsel.13
However, both the GCEU and the CJEU on appeal did not follow this view and basicallyconfirmed the previous case law on LPP, according to which in-house lawyers do notsatisfy the requirement of independence established by the judgment in AM&S.14 As
stated by the CJEU, the concept of independence of lawyers “is determined not only
9

Case 155/79, para 25. The limits of this protection are to be determined by reference to the rules on the practice of the legal profession
as set forth in Council Directive 77/249/EEC of March 22, 1977, to facilitate the effective exercise by lawyers of freedom to provide services(OJ L 78/17) and Directive 98/5/EC of the European Parliament and of the Council of February 16, 1998, to facilitate practice of theprofession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained (OJ L 77/36).
10
Some European countries allow for lawyers – registered with a Bar or Law Society – to work in-house for a company. These lawyers are
subject to the same professional and ethical rules as outside lawyers.
11
Case 155/79, paras 24 and 27.
12
Ibid.
13
Joined Cases T-125 and 253/03 R, Akzo Nobel Chemicals and Akcros Chemicals / Commission, 2003 ECR II-4771. The President suggested
that, although the Member States do not unanimously recognize LPP for communications between in-house counsel and their employers,
the AM&S judgment, which was based on an interpretation dating from 1982 of the principles common to the Member States, may be
outdated. “[T]aking into account developments in [EU] law and in the legal orders of the Member States since the judgment in AM & S ... itcannot be precluded that the protection of professional privilege should now also extend to written communications with a lawyer
employed by an undertaking on a permanent basis”. He opined that it appeared prima facie possible that the role assigned to independentlawyers of collaborating in the administration of justice by the courts “is now capable of being shared, to a certain degree, by certain
categories of lawyers employed within undertakings on a permanent basis where they are subject to strict rules of professional conduct”. In
his view, the EU legal order could follow an increasing number of legal orders of the Member States which no longer presume “that the linkof employment between a lawyer and an undertaking will always, and as a matter of principle, affect the independence necessary for theeffective exercise of the role of collaborating in the administration of justice by the courts if, in addition, the lawyer is bound by strict rulesof professional conduct, which where necessary require that he observe the particular duties commensurate with his status”: Id., paras 121126.
14
Joined Cases T-125 and 253/03 Akzo Nobel Chemicals and Akcros Chemicals / Commission 2007 ECR 3523, and Case 550/07 P Akzo Nobel
Chemicals and Akcros Chemicals / Commission, 2010 ECR I-8301.

positively, that is by reference to professional ethical obligations, but also negatively, by
the absence of an employment relationship”.15 Due to the employment relationship, “anin-house lawyer is less able to deal effectively with any conflicts between his professional
obligations and the aims of his client” and, as a consequence, he or she cannot “ensure adegree of independence comparable to that of an external lawyer”.16 The CJEU took theview that the evolution of the laws of Member States and EU competition rules did not
make it necessary to reconsider the judgment in AM&S, noting that “no uniform tendency
can be established in the legal systems of the Member States towards the assimilation of
in-house lawyers and lawyers in private practice”, given that many Member States still
exclude correspondence with in-house lawyers from LPP protection or do not allow inhouse lawyers to be admitted to a Bar or Law Society.17 Nor do the amendments to therules of procedure introduced by Regulation 1 – along with the increased need for inhouse legal advice – justify a change in the case law, since Regulation 1 “does not aim torequire in-house and external lawyers to be treated in the same way as far as concerns
legal professional privilege, but aims to reinforce the Commission’s powers ofinspection”.18 Finally, in light of the different degree of professional independence of inhouse and outside lawyers, the CJEU confirmed that the differential treatment of the twocategories of lawyers cannot be considered to amount to a breach of the principle ofequal treatment.19
Impact of the CJEU’s case law on Member State procedural rules
It is important to note that many Member States have introduced the concept of legal
professional privilege in their competition proceedings in light of the aforementioned
Court’s jurisprudence20.
European Court of Human Rights (ECHR)
Judgments of the ECHR have also recognised a right to confidentiality ofcommunications between lawyer and client on the basis of either Article 8 ‘Right torespect for private and family life’ or Article 6 ‘Right to a fair trial’21 of the European
Convention on Human Rights.
Article 8 is of particular interest since it clearly establishes the right of everyone to respectfor his correspondence. It protects the confidentiality of communications whatever thecontent of the correspondence concerned and whatever form it may take. Anyinterference must be in accordance with the law, pursue a legitimate aim and benecessary in a democratic society to achieve the aim concerned22. The latter has been
considered by the Court in numerous decisions.

15

Case C-550/07 P, para 45.
Id., paras 45 and 46. Indeed, according to the Court, an in-house lawyer “occupies the position of an employee which, by its very nature,
does not allow him to ignore the commercial strategies pursued by his employer, and thereby affects his ability to exercise professional
independence” (id., para 47).
17
Id., paras 71-73.
18
Id., para 86.
19Id., paras 54-59.
20
See Jean-François Bellis, Legal professional privilege: An overview of EU and national case law, October 2011, e-Competitions, No39467.
21
Regarding case-law of the ECHR and European Human Rights Commission supporting the criminal charges classification of competition
proceedings, see Donald Slater, Sébastien Thomas and Denis Waelbroeck, Competition law proceedings before the European Commission
and the right to a fair trial: no need for reform?, Research Papers in Law - Cahiers juridiques, No 5 / 2008, College of Europe
22
Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and isnecessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for theprevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
16

The jurisprudence of the ECHR is very rich as far as the confidentiality of lawyer-client
communication is concerned and has increasingly developed over the years. Reference
is made here to a few key decisions laying down general principles to be observed whenit comes to the lawyer-client relationship:-“(…) If a lawyer were unable to confer with his client and receive confidential
instructions from him without such surveillance, his assistance would lose much of its
usefulness, whereas the Convention is intended to guarantee rights that are practicaland effective (…).” (§48, S. v. Switzerland, 1991)-“(…) it has, in this connection, to be recalled that, where a lawyer is involved, an
encroachment on professional secrecy may have repercussions on the proper
administration of justice and hence on the rights guaranteed by Article 6 (art. 6) of theConvention. (…)” (§37, Niemietz v. Germany, 1992)-“Above all, in practice, it is, to say the least, astonishing that this task should be
assigned to an official of the Post Office’s legal department, who is a member of theexecutive, without supervision by an independent judge, especially in this sensitive
area of the confidential relations between a lawyer and his clients, which directly
concern the rights of the defence.” (§74, Kopp v. Switzerland, 1999)

In the case Foxley v. The United Kingdom (2000), which is of particular interest as far
communications between lawyers and clients are concerned, the Court ruled that Article
8 was violated by the interception of correspondence of the applicant with his solicitors.
The Court highlighted in this case the need for effective safeguards to ensure minimum
impairment of the right to respect for correspondence and also recalled that the lawyerclient relationship is, in principle, privileged and correspondence in that context, whateverits purpose, concerns matters of a private and confidential nature:“43. The Court recalls that the notion of necessity implies that the interference
corresponds to a pressing social need and, in particular, that it is proportionate to thelegitimate aim pursued. In determining whether an interference is “necessary in a
democratic society” regard may be had to the State’s margin of appreciation (see theCampbell v. the United Kingdom judgment of 25 March 1992, Series A no. 233, p. 18,§ 44). It further observes that in the field under consideration - the concealment of abankrupt’s assets to the detriment of his creditors - the authorities may consider it
necessary to have recourse to the interception of a bankrupt’s correspondence inorder to identify and trace the sources of his income. Nevertheless, theimplementation of the measures must be accompanied by adequate and effective
safeguards which ensure minimum impairment of the right to respect for hiscorrespondence. This is particularly so where, as in the case at issue,
correspondence with the bankrupt’s legal advisers may be intercepted. The Court
notes in this connection that the lawyer-client relationship is, in principle, privileged
and correspondence in that context, whatever its purpose, concerns matters of a
private and confidential nature (the above-mentioned Campbell judgment, pp. 18-19,§§ 46 and 48)”.

Council of Europe Recommendation Rec(2000)21 of 25 October 2000

In addition to the abundant jurisprudence of the European Courts regarding privileged
communications, it is also important to mention the Council of Europe23 Recommendation
Rec(2000)21 of 25 October 2000 concerning the freedom of exercise of the profession oflawyer in Europe which provides that “All measures should be taken to ensure the respect ofconfidentiality of the lawyer-client relationship. Exceptions to this principle should be allowed
only if compatible with the Rule of Law.” (Principle I, paragraph 6) and that “Professionalsecrecy should be respected by lawyers in accordance with internal laws, regulations andprofessional standards. Any violation of this secrecy, without the consent of the client, should
be subject to appropriate sanctions.” (Principle III, paragraph 2)
B. CCBE documents
The CCBE attaches great attention to the core values of the legal profession in Europe,
including PS-LPP. This is also why it is working at this very moment ‘Towards a model codeof conduct’ which will serve as guidance for national Bars and Law Societies when reviewing
their own national rules. The model code will deal, amongst others, with confidentiality andtake into account the existing jurisprudence of the European courts.
The CCBE has two key documents which address confidentiality.
First, the CCBE Charter of Core Principles of the European Legal Profession, which
was adopted on 24 November 2006, and contains a list of ten core principles common to
the national and international rules regulating the legal profession. Principle (b) of theCharter provides:“Principle (b) – the right and duty of the lawyer to keep clients’ matters confidential and torespect professional secrecy:
It is of the essence of a lawyer’s function that the lawyer should be told by his or her
client things which the client would not tell to others - the most intimate personal details
or the most valuable commercial secrets - and that the lawyer should be the recipient ofother information on a basis of confidence. Without the certainty of confidentiality there
can be no trust. The Charter stresses the dual nature of this principle - observing
confidentiality is not only the lawyer’s duty - it is a fundamental human right of the client.
The rules of “legal professional privilege” prohibit communications between lawyer andclient from being used against the client. In some jurisdictions the right to confidentiality isseen as belonging to the client alone, whereas in other jurisdictions “professionalsecrecy” may also require that the lawyer keeps secret from his or her own client
communications from the other party’s lawyer imparted on the basis of confidence.
Principle (b) encompasses all these related concepts - legal professional privilege,confidentiality and professional secrecy. The lawyer’s duty to the client remains evenafter the lawyer has ceased to act.”
It is important to note that the CCBE Charter is not conceived as a code of conduct. It is,however, aimed at applying to all of Europe, reaching out beyond the member, associate
and observer states of the CCBE. The Charter aims, inter alia, to help bar associations
that are struggling to establish their independence; and to increase understanding among

23

The Council of Europe is the continent's leading human rights organisation. It includes 47 member states, 28 of which are members of
the European Union. All Council of Europe member states have signed up to the European Convention on Human Rights, a treaty designed
to protect human rights, democracy and the rule of law. For more information on the Council of Europe, click here.

lawyers of the importance of the lawyer’s role in society; it is aimed at lawyers, decision
makers and the general public.
Second, the CCBE Code of Conduct for European Lawyers, which dates back to 28
October 1988 and was last reviewed in 2006, also contains a provision on confidentiality:“2.3. Confidentiality
2.3.1. It is of the essence of a lawyer’s function that the lawyer should be told by his or
her client things which the client would not tell to others, and that the lawyer should be
the recipient of other information on a basis of confidence. Without the certainty ofconfidentiality there cannot be trust. Confidentiality is therefore a primary andfundamental right and duty of the lawyer.
The lawyer’s obligation of confidentiality serves the interest of the administration of justice
as well as the interest of the client. It is therefore entitled to special protection by theState.
2.3.2. A lawyer shall respect the confidentiality of all information that becomes known to
the lawyer in the course of his or her professional activity.
2.3.3. The obligation of confidentiality is not limited in time.
2.3.4. A lawyer shall require his or her associates and staff and anyone engaged by him
or her in the course of providing professional services to observe the same obligation ofconfidentiality.”
Contrary to the Charter, the Code is a binding text on all CCBE Member States meaningthat all lawyers who are members of the bars of these countries (whether their bars are
full, associate or observer members of the CCBE) have to comply with the Code in theircross-border activities within the European Union, the European Economic Area and the
Swiss Confederation as well as within associate and observer countries.



Research
The CCBE also carries out regular research into PS-LPP. The most recent research wasundertaken in 2014. Results of previous research are publicly available and listed below:-

CCBE Comparative Study on Governmental Surveillance of Lawyers’ Data in the
Cloud, 4 April 2014-

Regulated legal professionals and professional privilege within the European Union,
the European Economic Area and Switzerland, and certain other European
jurisdictions - John FISH , 27 February 2004-

Update of the Edward's Report on the professional secret, confidentiality and legal
professional privilege in Europe, 30 September 2003

-

Report on The professional secret, confidentiality and legal professional privilege in
the nine member states of the European Community - D.A.O. EDWARD, QC, 29
October 1976

The above shows that the confidentiality of communications between clients and lawyers isgiven particularly high attention by the European courts and relevant European bodies.
Confidentiality is not only seen as the lawyer’s duty, but as a fundamental human right of theclient. Without the certainty of confidentiality there cannot be trust, which is key to the proper
functioning of the administration of justice and the rule of law.
We are happy to answer any questions or provide further information or clarification.

Yours sincerely,

Aldo Bulgarelli
CCBE President