Order — ECLI:EU:T:2004:165
Date: 2004-05-28
Language of the case: English
Court formation: Fifth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Principles, objectives and tasks of the Treaties
Concepts: Intervention
Procedure: Action for annulment;Application to intervene - unfounded
Origin: United Kingdom

summary documents, notably for the purpose of gathering the information which the lawyer may find useful, or indeed indispensable, in understanding the context, the nature and the scope of the facts in respect of which his assistance is sought. Furthermore, the preparation of such documents may prove particularly necessary in matters involving considerable and complex information, which is the case, in particular, of proceedings initiated with a view to imposing sanctions for infringements of Articles 81 EC and 82 EC. 103. In that context, although Regulation No 17 has given the Commission wide powers of investigation and placed undertakings under an obligation to cooperate in the measures of investigation, it is settled case-law that it is none the less necessary to prevent the rights of the defence from being irremediably impaired during preliminary inquiry proceedings including, in particular, investigations which may be decisive in providing evidence of the unlawful nature of conduct engaged in by undertakings for which they may be liable (Joined Cases 46/87 and 227/88 Hoechst v Commission [1989] ECR 2859, paragraph 15, and Case 374/87 Orkem v Commission [1989] ECR 3283, paragraph 33). 104. If, in the context of investigations ordered under Article 14(3) of Regulation No 17, the Commission were able to copy working or summary documents prepared by an undertaking solely for the purpose of the exercise of the rights of defence by its lawyer, the consequence might prima facie be an irremediable impairment of the rights of defence of that undertaking, since the Commission would have evidence of such a kind as to provide it with immediate information on the defence options available to the undertaking. There is reason to conclude, therefore, that such documents are capable of being covered by professional privilege. 105. It is therefore necessary to determine whether, in the present case, the Set A documents may belong to such a category. 106. The applicants claim that the Set A typewritten memoranda were drafted in the context of a competition law compliance programme set up by outside lawyers. More specifically, the Set A memoranda were drawn up by the General Manager of Akcros Chemicals on the basis of discussions with lower-level employees, initially communicated to his superior and then, finally, discussed with the applicants' external counsel. 107. The President considers at this stage that, as the Commission has stated, the mere existence of a competition law compliance programme set up by outside lawyers is not prima facie sufficient to establish that a document prepared in the context of such a programme is covered by professional privilege. Owing to their extent, those programmes include tasks which frequently extend far beyond the exercise of the rights of the defence. 108. Having made that clear, the President none the less considers that, in the present case, it cannot be precluded prima facie that, because of other factors, the Set A typewritten memoranda were in fact drafted for the sole purpose of obtaining legal advice from the applicants' lawyer in the context of the exercise of the rights of the defence. 109. First, after examining the Set A memoranda, the President found that, in the light of their content, virtually the sole purpose of those documents was prima facie to compile information of the kind which would be communicated to a lawyer for the purpose of obtaining his assistance on questions involving the possible application of Articles 81 EC and 82 EC. The first sentence of the memoranda gives the clear impression that the General Manager of Akcros Chemicals intended to assemble, in the Set A documents, information relating to certain competition law matters. Owing to their content and their scope, moreover, there are serious doubts as to the possibility that the memoranda might have been drafted for a purpose other than the subsequent consultation of a lawyer. Furthermore, even if at this stage their content does not indicate beyond doubt that the documents were drafted for the sole purpose of obtaining the assistance of a lawyer, the President none the less considers that the absence of express reference in the memoranda to seeking legal assistance is not in the present case sufficient reason to reject outright the possibility that such assistance was in fact the reason why they were drafted. 110. Second, the applicants produced before the President the minute of a telephone conversation drafted by one of the applicants' lawyers on the day on which the conversation took place. As this minute might itself be protected by professional privilege, it could not be communicated to the Commission. It gives the impression, however, that certain points discussed did in fact relate prima facie to information contained in the Set A documents. 111. Third, one of the two copies of the Set A memorandum bears handwritten notes mentioning the name of the applicants' counsel and tends to indicate that a telephone conversation did indeed take place with him on the actual day on which he drafted the minute of his telephone conversation referred to in the preceding paragraph. 112. Consequently, in the circumstances of the present case, the President considers that this evidence tends to confirm the possibility that the Set A memoranda were drafted for the sole purpose of obtaining the assistance of a lawyer. 113. As regards, last, the condition relating to the exercise of the rights of the defence, it is apparent upon examining the Set A documents that they relate to facts which are prima facie capable of justifying consultation of a lawyer and of being connected either with the investigation currently being carried out by the Commission or with other investigations which the applicants were reasonably able to fear or anticipate and in view whereof they intended to draw up a strategy and prepare in advance, if necessary, the exercise of their rights of defence. Prima facie, however, it remains necessary, for the purpose of examining the present plea, to determine the precise conditions in which such documents may, particularly from a temporal and material viewpoint, constitute a means of exercising the rights of the defence. 114. It follows from the foregoing, therefore, that, in so far as it concerns the Set A documents, the applicants' second plea raises numerous delicate questions of principle requiring a detailed examination in the main proceedings and that it does not therefore appear, at this stage, to be manifestly unfounded. - Second plea, alleging breach of professional privilege, in so far as it concerns the Set B documents 115. As stated at paragraphs 9 and 10 above, the Set B documents consist, first, of handwritten memoranda which, according to the applicants, were taken with a view to drafting the Set A memoranda and, second, of e-mails. It is necessary to examine those three documents in the light of the second plea raised by the applicants, alleging breach of professional privilege by the Commission. 116. As regards, first, the Set B handwritten memoranda, it is apparent, on the basis of a comparison with the typewritten Set A memoranda, that both have the same overall structure. They also contain, in substance, numerous common points. It cannot be precluded prima facie, therefore, that, like the Set A memoranda, the Set B handwritten memoranda would never have been drafted had the author not envisaged consulting a lawyer about their contents. The applicants' second plea, as regards the Set B handwritten memoranda, is therefore not wholly unfounded. 117. It is necessary to examine, last, the two Set B e-mails between the General Manager of Akcros Chemicals and the Akzo Nobel's competition law coordinator. 118. In that regard, it should be pointed out that, in application of the principles laid down in AM & S v Commission, cited at paragraph 66 above, the protection afforded by Community law, especially in the context of Regulation No 17, to written communications between lawyer and client applies only in so far as those lawyers are independent, i.e. not bound to the client by a relationship of employment (AM & S v Commission, cited at paragraph 66 above, paragraph 21). 119. In the present case, it is common ground that the e-mails in question were exchanged between the General Manager of Akcros Chemicals and a lawyer employed on a permanent basis by Akzo Nobel. Following AM & S v Commission, cited at paragraph 66 above, those communications are therefore not in principle covered by professional privilege. 120. None the less, the President considers that the arguments put forward by the applicants and the interveners raise a question of principle which merits very special attention and which cannot be resolved in the present interim proceedings. 121. On the one hand, as the Commission emphasises, the Member States do not unanimously recognise the principle that written communications with in-house lawyers must be covered by professional privilege. Furthermore, as the Commission also points out, it is necessary to ensure that an extension of professional privilege cannot facilitate abuses which would enable evidence of an infringement of the Treaty competition rules to be concealed and thus prevent the Commission from carrying out its task of ensuring compliance with those rules. 122. On the other hand, however, the solution in AM & S v Commission, cited at paragraph 66 above, is based, inter alia, on an interpretation of the principles common to the Member States dating from 1982. It is therefore necessary to determine whether, in the present case, the applicants and the interveners have adduced serious evidence of such a kind as to demonstrate that, taking into account developments in Community law and in the legal orders of the Member States since the judgment in AM & S v Commission, cited at paragraph 66 above, it cannot 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. 123. The President considers that arguments to that effect have been submitted in the present case and that they are not wholly unfounded. 124. First, the applicants, the Algemene Raad van de Nederlandse Orde van Advocaten and ECLA have adduced evidence which indicates that, since 1982, a number of Member States have adopted rules designed to protect written communications with a lawyer employed by an undertaking on a permanent basis, provided that he is subject to certain rules of professional conduct. That appears to be the position, in particular, in Belgium and the Netherlands. At the hearing, ECLA further stated that in most Member States written communications with in-house lawyers subject to particular rules of professional conduct were protected by professional privilege. The Commission, on the other hand, contended in its observations that it was only in a minority of Member States that communications with in-house lawyers were covered by professional privilege. 125. Without its being possible at this stage to ascertain and to embark upon a thorough and detailed analysis of the evidence adduced by the applicants and the interveners, that evidence none the less appears prima facie to be capable of showing that the role assigned to independent lawyers of collaborating in the administration of justice by the courts, which proved decisive for the recognition of the protection of written communications to which they are parties (AM & S v Commission, cited at paragraph 66 above, paragraph 24), 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. 126. The evidence therefore tends to show that increasingly in the legal orders of the Member States and possibly, as a consequence, in the Community legal order, there is no presumption that the link of employment between a lawyer and an undertaking will always, and as a matter of principle, affect the independence necessary for the effective exercise of the role of collaborating in the administration of justice by the courts if, in addition, the lawyer is bound by strict rules of professional conduct, which where necessary require that he observe the particular duties commensurate with his status. 127. It must therefore be held that the applicants and the interveners have presented arguments which are not wholly unfounded and which are apt to justify raising again the complex question of the circumstances in which written communications with a lawyer employed by an undertaking on a permanent basis may possibly be protected by professional privilege, provided that the lawyer is subject to rules of professional conduct equivalent to those imposed on an independent lawyer. In the present case, the applicants maintained at the hearing, without being clearly contradicted on that point by the Commission, that the lawyer whom they employed on a permanent basis was in fact bound by professional rules equivalent to those governing independent lawyers of the Netherlands Bar. 128. Nor does that question of principle appear prima facie to have to be rejected at this stage as a result of the Commission's argument that recognition of professional privilege for written communications with lawyers employed on a permanent basis would give rise to different regimes within the European Union, depending on whether or not in-house lawyers are authorised by the Member States to be members of a Bar. 129. This complex question must be examined thoroughly, in particular as regards, first, the precise scope of the right which would then be recognised, second, the Community rules and national rules applicable to the professions of lawyer and in-house lawyer and, third, the legal and practical alternatives available to companies established in Member States which do not allow in-house lawyers to be members of a Bar. 130. It must therefore be concluded that, in the present case, the applicants have, by their second plea, raised a delicate question of principle, which requires a complex legal assessment and must be reserved for the Court when it adjudicates on the main application. 131. It is also necessary, in the present case, to examine the first plea put forward by the applicants. - First plea, alleging breach of the procedural principles laid down in AM & S v Commission and of Article 242 EC 132. In principle, where the undertaking which is the subject of an investigation under Article 14 of Regulation No 17 refuses, on the ground that it is entitled to protection of the confidentiality of information, to produce, among the business records demanded by the Commission, written communications between itself and its lawyer, it must nevertheless provide the Commission's authorised agents with relevant material of such a nature as to demonstrate that the communications fulfil the conditions for being granted legal protection, although it is not bound to reveal the contents of the communications in question. Where the Commission is not satisfied that such evidence has been supplied, it is for the latter to order, pursuant to Article 14(3) of Regulation No 17, production of the communications in question and, if necessary, to impose on the undertaking fines or periodic penalty payments under that regulation as a penalty for the undertaking's refusal either to supply such additional evidence as the Commission considers necessary or to produce the communications in question whose confidentiality, in the Commission's view, is not protected by law (AM & S v Commission, cited at paragraph 66 above, paragraphs 29 to 31). It is then open to the undertaking subject to the investigation to lodge an application for annulment of the Commission's decision, together where appropriate with an application for interim measures, under Articles 242 EC and 243 EC. 133. The principles thus recited tend to demonstrate that, in principle, where the representatives of the undertaking under investigation have produced relevant material of such a nature as to demonstrate that a particular document is protected by professional privilege and where the Commission is not satisfied with those explanations, the Commission is not prima facie entitled to examine the document concerned before it has adopted a decision allowing the undertaking under investigation to bring the matter before the Court of First Instance and, where appropriate, the judge with jurisdiction to order interim measures. 134. It is apparent, on the contrary, that the mere fact that an undertaking claims that a document is protected by professional privilege is not prima facie sufficient to prevent the Commission from reading that document if, in addition, the undertaking produces no relevant material of such a kind as to prove that it is actually protected by professional privilege. 135. In the present case, paragraph 6 of the decision of 8 May 2003 states that, when examining the Set A documents, the applicants' representatives, first, had a detailed discussion with the Commission's officials, second, mentioned a manuscript reference to the name of an external lawyer on one of the copies of those memoranda and, third, claimed that the memoranda had been prepared with a view to seeking legal advice. Those statements tend prima facie to indicate that the applicants produced relevant material of such a kind as to prove that the documents should be protected. 136. As regards, next, the Set B documents, it is apparent from paragraph 7 of the decision of 8 May 2003 and also from the Commission's observations that the applicants' representatives and the Commission's officials also had a detailed discussion about the contents of the three documents, which, too, does not preclude prima facie that the applicants' representatives produced, during that discussion, material of such a kind as to justify the possible protection of the three Set B documents, as in the case of the Set A documents. 137. However, the applicants' present plea raises a further delicate question. It is necessary to consider, in addition, whether, in the light of the duty of an undertaking subject to an investigation to submit relevant material of such a kind as to prove that a document must in fact be protected, the Commission officials were prima facie entitled, as they did in the present case, to cast a cursory glance over that document in order to form their own view of its eligibility for protection. 138. It follows from AM & S v Commission, cited at paragraph 66 above, that the undertaking under investigation is not bound to reveal the contents of the documents in question when it is required to present to the Commission's officials relevant material of such a kind as to prove that the documents merit protection (AM & S v Commission, cited at paragraph 66 above, paragraph 29). Furthermore, if the Commission's officials were able to cast even a cursory glance over the documents concerned, there would be a risk that, in spite of the superficial nature of their examination, they would read information covered by professional privilege. That may be so, in particular, if the confidentiality of the document in question is not clear from external indications such as a lawyer's letterhead or a clear reference by that lawyer to the confidentiality from which the document should benefit. In such a situation, it would frequently happen that the only way in which the Commission's officials would be able to satisfy themselves that the protected information was confidential would be by looking at the information itself. On the other hand, if those officials, without first consulting the documents concerned, simply placed copies of them in a sealed envelope which they removed with a view to a subsequent resolution of the dispute, then prima facie the risks of a breach of professional privilege could be avoided and at the same time the Commission would be able to retain a certain control over the documents forming the subject-matter of the investigation. 139. The President therefore considers that it is not precluded at this stage that, in the context of an investigation under Article 14(3) of Regulation No 17, the Commission's officials must refrain from casting even a cursory glance over the documents which an undertaking claims to be protected by professional privilege, at least if the undertaking has not given its consent. 140. In the present case, it follows from the minute of the investigation prepared by the Commission that the applicants' representatives were firmly opposed to a cursory examination of the documents in the file in question and also that it was only when they were reminded of the possible criminal consequences of obstructing the investigation that they agreed to allow the leader of the investigating team to glance quickly at the documents. At this stage, the President is unable to determine whether the Commission's warnings were sufficient to vitiate the consent of the applicants' representatives. However, the circumstances in which the warnings were formulated do not make it possible to conclude, at this stage, that the applicants gave their unreserved consent to the brief review of the Set A and Set B documents subsequently carried out by the leader of the investigating team, as may be seen from points 14 and 15 of the minute of the investigation. 141. Furthermore, it is common ground between the parties that it was subsequently, at the stage of the investigation, that the Commission placed the Set B documents in its file, without first adopting a decision under Article 14(3) of Regulation No 17, which would have allowed the applicants to bring the matter before the Court of First Instance and, if appropriate, the judge with jurisdiction to make interim orders. 142. At this stage, therefore, it appears that the applicants' first plea raises a complex question of interpretation of the procedure defined in AM & S v Commission, cited at paragraph 66 above, and that it cannot be precluded that the Commission failed to observe the procedural principles laid down in that judgment. 143. The arguments put forward by the Commission do not call in question either the importance of that question of interpretation or the possibility that the Commission acted unlawfully in regard to the Set A and Set B documents. 144. The Commission contends, first, that in AM & S v Commission, cited at paragraph 66 above, its initial investigation was based on Article 14(2) of Regulation No 17 and that it therefore had no option other than subsequently to order production of the documents concerned on the basis of Article 14(3) of Regulation No 17. The situation is different in the present case, since its decision to carry out an investigation was based from the outset on Article 14(3) of Regulation No 17. 145. It should be observed, however, that at paragraph 29 of AM & S v Commission, cited at paragraph 66 above, the Court of Justice drew no distinction according to whether the decision to carry out an investigation, on the basis of which communication of documents is initially demanded, is based on Article 14(2) of Regulation No 17 or on Article 14(3) thereof. The Court of Justice merely referred generally to investigations decided under Article 14 of Regulation No 17. It cannot therefore be inferred prima facie that the outcome must necessarily be different where the initial decision to carry out an investigation is based on Article 14(3) of Regulation No 17 rather than on Article 14(2) thereof. 146. In any event, the Commission has not shown how the fact that it ordered an investigation on the basis of Article 14(3) of Regulation No 17 would prima facie be sufficient to allow it to read immediately documents potentially protected by professional privilege without having first adopted a second decision which would give the undertaking forming the subject of an investigation the proper opportunity to challenge the Commission's position before the Court of First Instance and, where appropriate, the judge with jurisdiction to make interim orders. Admittedly, the Commission stated at the hearing that the undertaking under investigation could challenge the first decision, adopted under Article 14(3) of Regulation No 17. However, as already held at paragraph 68 above, an undertaking cannot plead the illegality affecting the investigation procedures as a ground for annulment of the measure on the basis of which the Commission carried out that investigation (see, in particular, Dow Benelux v Commission, cited at paragraph 68 above, paragraph 49, and Limburgse Vinyl Maatschappij and Others v Commission, cited at paragraph 68 above, paragraph 413). Furthermore, it is apparent that where, during an investigation, the Commission intends to read immediately documents which the undertaking concerned claims to be covered by professional privilege, it is prima facie unrealistic to consider that that undertaking, which has just learnt of the decision to carry out an investigation, has the actual and effective possibility to challenge it before the Court of First Instance and, in particular, before the judge with jurisdiction to make interim orders, before the Commission reads the documents in question. In such a circumstance, the interests of the undertaking do not seem to be sufficiently protected by the possibility available under Articles 242 EC and 243 EC to obtain an order suspending the decision or any other interim measure (see, by analogy, AM & S v Commission, cited at paragraph 66 above, paragraph 32). 147. Second, the Commission maintained in its observations that it was entitled, where there can be no doubt that the document cannot be covered by professional privilege, to place it immediately with the rest of its file, as it did in the case of the Set B documents. 148. That solution cannot be accepted at this stage without a thorough analysis in the main action. First, as stated at paragraphs 137 to 140 above, it cannot be precluded that the Commission's officials must refrain from casting even a cursory glance over the documents in respect of which an undertaking produces relevant material of such a kind as to prove that they are covered by professional privilege. Second, even on the assumption that the Commission's officials were entitled to do so, the fact would remain that certain documents covered by professional privilege, in particular the documents reporting the contents of a communication with a lawyer, appear to be purely internal documents and do not necessarily give any external indication that they are confidential. Consequently, in such a circumstance, the only way in which the Commission's officials could have no doubt that a document did not have protection would ultimately be to read it in full on the spot and, consequently, to know what is in it before first giving the undertaking under investigation the opportunity to challenge the Commission's decision before the Court of First Instance and, where appropriate, the judge with jurisdiction to make interim orders. 149. The Commission's arguments therefore do not affect the reality of the question of principle raised by the applicants' first plea, namely the question of the circumstances in which, in procedural terms, the requirements of professional privilege and the material and practical constraints which bind the Commission in matters of investigation must be reconciled. 150. The condition relating to a prima facie case is therefore satisfied as regards the Set A and Set B documents. It is therefore appropriate to consider whether the applicants have shown an urgent need to order the interim measures requested for each of the documents concerned. Urgency Arguments of the parties 151. The applicants maintain that a distinction must be drawn between the Set A and Set B documents for the purpose of assessing the urgency of ordering the interim measures sought. 152. First, as regards the Set A documents, the applicants observe that, in the decision of 8 May 2003, the Commission stated that it would not open the sealed envelope before expiry of the period within which an appeal could be lodged against the decision. The applicants state that they are prepared to withdraw their application for interim measures in respect of the Set A documents if the Commission guarantees in writing that the envelope containing those documents will remain sealed until the end of the main proceedings. 153. Second, the applicants state that the Set B documents have been in the Commission's possession since February 2003 and that the Commission has already read them, so that it is necessary to adopt urgent measures in order to ensure that the Commission does not take irreversible steps on the basis of those documents. 154. Third, the applicants submit that they could suffer irreparable damage if the effects of the decision of 8 May 2003 were not suspended. In particular, the status of the documents may have an effect on the applicants' position in the current investigation, since the Set B documents have already been reviewed and since, on the basis of all the documents concerned, the Commission may adopt other measures of investigation or address a statement of objections to the applicants. The applicants acknowledge, in that regard, that procedural irregularities may be invoked in an action against a decision adopted on the basis of Article 81(1) EC but maintain that it is not in the Commission's interest that that evaluation should be made at such a late stage. Furthermore, the applicants contend that the possibility that third parties may have access to the documents may cause them irreparable harm, in particular since authorities other than the Commission may order those third parties to communicate documents to them in the context of discovery procedures. Last, the status of the documents is of the greatest importance in the light of the investigations taking place in Canada, the United States and Japan. 155. The Commission, on the other hand, contends that there is no urgency in ordering the interim measures sought. 156. On that point, the Commission states, first, that it will not open the envelope containing the Set A documents until the President has adjudicated on the application in this case. As regards, next, both the Set A and the Set B documents, the Commission states that if the Court should hold in the main proceedings that the decision of 8 May 2003 is unlawful, the Commission would be obliged to remove from its file the documents affected by that illegality and would be prevented from using the information as evidence. The Commission none the less contends that it may base its future strategy on the documents removed from the file, since it is not required to suffer acute amnesia (Case C-67/91 Dirección General de Defensa de la Competencia v Asociación Española de Banca Privada and Others [1992] ECR I-4785, paragraph 39, referring to Dow Benelux v Commission, cited at paragraph 68 above, paragraphs 18 and 19). 157. The Commission also states that it will not give third parties access to the documents in question before the Court has adjudicated on the main application, thus preventing any risk of disclosure in the hands of third parties. 158. Last, the risk that contentious proceedings will be initiated outside the Community is purely hypothetical and as such cannot be taken into account in examining the urgency of ordering interim measures (order of the President of the Court of Justice of 14 December 1999 in Case C-335/99 P(R) HFB and Others v Commission [1999] ECR I-8705, paragraph 67). Findings of the President 159. It is settled case-law that the urgency of an application for interim measures must be assessed in relation to the necessity to give interim judgment in order to prevent serious and irreparable harm being occasioned to the party seeking the interim measure. It is for the latter to adduce evidence that it cannot await the outcome of the main proceedings without being required to sustain harm of that nature (see, in particular, orders of the President of the Court of First Instance of 30 April 1999 in Case T-44/98 R II [1999] ECR II-1427, paragraph 128, and of 7 April 2000 in Case T-326/99 R Fern Olivieri v Commission [2000] ECR II-1985, paragraph 136). 160. It is sufficient, however, particularly where the occurrence of the harm depends on the occurrence of a number of factors, that the harm is foreseeable with a sufficient degree of probability (see, in particular, order of the Court of Justice of 29 June 1993 in Case C-280/93 R Germany v Council [1993] ECR I-3667, paragraphs 22 and 34, and order in HFB and Others v Commission, cited at paragraph 158 above, paragraph 67). 161. It is appropriate, in the present case, to consider separately, first, whether the condition relating to urgency is satisfied in the case of the Set A documents and, second, whether it is satisfied in the case of the Set B documents. - Set A documents 162. As the Commission has not yet had access to the Set A documents, which are in a sealed envelope, it is appropriate to determine whether it is necessary, in order to prevent serious and irreparable harm being caused, to order the Commission not to read those documents and, consequently, to suspend the operation of Article 2 of the decision of 8 May 2003. 163. In that regard, if the Commission were to read the Set A documents and if the Court of First Instance should subsequently consider, in its judgment in the main proceedings, that the Commission was wrong to refuse to regard those documents as covered by professional privilege, it would be impossible in practice for the Commission to draw all the inferences from that judgment of annulment, since its officials would already have become aware of the contents of the Set A documents. 164. In that sense, the fact that the Commission was aware of the information in the Set A documents would as such constitute a substantial and irreversible breach of the applicants' right to respect for the confidentiality protecting those documents. 165. The Commission none the less states that, if the decision of 8 May 2003 were subsequently held to be unlawful, it would be required to remove from its file the documents affected by that unlawfulness and would therefore be unable to use them as evidence. 166. The President considers that the fact that the Commission would be unable to use the documents as evidence effectively prevents the aggravation of part of the harm which the applicants might sustain, namely the harm associated with the subsequent use as evidence of the documents in question. 167. On the other hand, the fact that the Commission would be unable to use the Set A documents as evidence would have no impact on the serious and irreparable harm which would result from their mere disclosure. The Commission's argument fails to take account of the particular nature of professional privilege. The purpose of professional privilege is not only to protect a person's private interest in not having his rights of defence irremediably affected but also to protect the requirement that every person must be able, without constraint, to consult a lawyer (see, to that effect, AM & S v Commission, cited at paragraph 66 above, paragraph 18). That requirement, which is formulated in the public interest of the proper administration of justice and respect for lawfulness, necessarily presupposes that a client has been free to consult his lawyer without fear that any confidences which he may impart may subsequently be disclosed to a third party. Consequently, the reduction of professional privilege to a mere guarantee that the information entrusted by a litigant will not be used against him dilutes the essence of that right, since it is the disclosure, albeit provisional, of such information that might be capable of causing irremediable harm to the confidence which that litigant placed, in confiding in his lawyer, in the fact that it would never be disclosed. 168. Consequently, the prohibition on the Commission's using the information in the Set A documents could at the most only prevent the aggravation of harm which would already be caused by the disclosure of those documents. 169. It must therefore be held that the condition relating to urgency is satisfied in the case of the Set A documents. - Set B documents 170. As a preliminary point, it should be borne in mind that, unlike in the case of the Set A documents, the Commission has already read the three Set B documents, which were not placed in a sealed envelope. It is therefore no longer possible to ensure that the Commission does not read those documents. However, if the decision of 8 May 2003 is annulled in the main proceedings, the Commission will not be able to use that information as evidence. 171. The applicants none the less contend that interim measures must be adopted as a matter of urgency in order to avoid three types of irreversible harm. 172. The first of these types of harm relates, first of all, to the fact that the Commission must be prevented from taking irreversible procedural steps on the basis of the Set B documents and, in particular, from carrying out other investigative operations or adopting a statement of objections. 173. However, in the event that the Commission, as it claims in its observations, should be lawfully entitled to use the information concerned as mere indicia, the harm sustained by the applicants would be already occasioned and irreversible, since the Commission has already read the documents in question. It is not for the judge hearing an application for interim measures to adopt measures designed to make up for harm which is already irreversible (order in Austria v Council, cited at paragraph 36 above, paragraph 113). 174. Furthermore, if, on the other hand, the Commission should not be authorised to use the documents in question as indicia, it would be required, should the decision be annulled in the main action, to take the necessary measures to comply with the judgment of the Court of First Instance (see, in particular, judgment in Case T-548/93 Ladbroke Racing v Commission [1995] ECR II-2565, paragraph 54) and, consequently, to cancel the measures previously adopted, which would be likely to prevent the occurrence of the harm on which the applicants rely. Consequently, in practice, harm could be established only if the Commission adopted measures based on the information in the Set B documents and the applicants were subsequently unable to demonstrate with sufficient certainty an actual link between the information and the measures adopted. The President considers that the applicants have not demonstrated that it was necessary and possible to order an interim measure to prevent a risk which, in the absence of proof to the contrary, remains hypothetical and, consequently, must not be taken into account under the head of urgency by the judge hearing the application for interim measures (order in HFB and Others v Commission, cited at paragraph 158 above, paragraph 67). 175. The applicants rely on a second type of harm relating, in essence, to the fact that, since the Set B documents have been placed in the Commission's file, third parties may demand access to them. There is, they allege, a risk that these third parties will themselves be obliged to communicate the documents in question to other third parties. The Commission must therefore return or destroy all the copies of the Set B documents in its possession. 176. It must be emphasised, however, that in its observations the Commission stated that it would not allow third parties to have access to the Set A and Set B documents until judgment is given in the main action. The judge hearing the application for interim measures, as he is entitled to do (see order of the president of the Court of Justice of 21 August 1981 in Case 232/81 R Agricola Commerciale Olio and Others v Commission [1981] ECR 2193), takes note, by the present order, of that declaration by the Commission. In those circumstances, the second type of harm relied on by the applicants must be rejected. 177. As regards, last, the third type of harm on which the applicants rely, it must be stated that they rely only on what they allege to be the great importance of the documents in question as regards investigations under way in Canada, the United States and Japan. In the light of the particularly vague nature of those arguments, it must be concluded that the applicants have not shown the need to prevent irreparable harm. At the hearing, the applicants did indeed state that the real importance of the Set B documents could not be evaluated at that stage. However, even on the assumption that that is actually so, the fact none the less remains that, as the Commission has noted, the applicants have once again relied solely on hypothetical risks. 178. In the light of the foregoing, the condition relating to urgency is not satisfied in the case of the Set B documents. Since it is satisfied in the case of the Set A documents, it is necessary to proceed, for those documents alone, to balance the interests involved. The balance of interests 179. As regards the balance of interests, the Commission observes that the documents in question may be useful to it after the proceedings, notably in order to enable it to make requests for information. The delay in the investigation should the measures sought be ordered would affect the general interest of the Community and, more generally, of society as a whole in competition investigations being carried out as speedily and efficiently as possible. Speed is also important for the undertakings which are subject to the same investigation as the applicants and which, in the Commission's submission, may well be affected by the uncertainty resulting from suspension of the decision of 8 May 2003. Last, the procedure proposed by the applicants, namely the procedure according to which an investigation should be suspended in respect of a document as soon as an undertaking claims professional privilege, constitutes an unrealistic procedure which would give rise to much abuse. Only the option which allows the Commission to place a document in a sealed envelope where there is doubt as to whether it is protected by professional privilege would allow it to retain a minimum of control over the procedure. 180. Where, on an application for interim measures, the judge before whom the applicant claims that it will sustain serious and irreparable harm weighs up the various interests involved, he must consider whether the annulment of the contested decision by the court dealing with the main application would make it possible to reverse the situation that would have been brought about in the absence of interim measures and, conversely, whether suspension of the operation of that decision would be such as to prevent its being fully effective in the event of the main application being dismissed (see, to that effect, orders of the President of the Court of Justice of 26 June 2003 in Joined Cases C-182/03 R and C-217/03 R Belgium and Forum 187 v Commission [2003] ECR I-6887, paragraph 142, and in Commission v Atlantic Container Line and Others, cited at paragraph 37 above, paragraph 50). 181. In the present case, it is appropriate to take into account, first, the applicants' interest in the Set A documents not being disclosed and, second, the general interest and the Commission's interest in the Treaty competition rules being observed. 182. First of all, it must be emphasised that an undertaking's interest in the documents which it claims to be protected by professional privilege not being disclosed must be evaluated by reference to the circumstances of each case and, in particular, to the nature and content of the documents concerned. In the present case, after examining the Set A documents, the President considers that their disclosure would be susceptible of causing serious and irreparable harm to the applicants, by virtue not only of their mere disclosure but also of their contents. 183. However, that interest must be balanced against the Commission's interest and, more generally, that of the general public in competition investigations being carried out with the utmost speed, having regard to the importance of the competition rules for the attainment of the objectives of the EC Treaty. 184. If the main application is dismissed, the Commission will be able to have access to the Set A documents. Consequently, in principle, on that date, even in the event that the investigation has been delayed, the Commission will none the less be in a position to use the Set A documents for the purpose of completing the investigation. 185. At the hearing, however, the Commission stated that the uncertainty in which it was placed, as regards the content of the documents in question, caused major problems in allocating its resources and defining its priorities and, consequently, obliged it to suspend its investigation. 186. According to settled case-law, however, the rights of the defence, to which professional privilege is a necessary corollary (AM & S v Commission, cited at paragraph 66 above, paragraph 23), constitutes a fundamental right (see, in particular, judgment of the Court of Justice in Limburgse Vinyl Maatschappij and Others v Commission, cited at paragraph 99 above, paragraph 85, and judgment in Enso Española v Commission, cited at paragraph 99 above, paragraph 80). That fundamental nature has the consequence that, in the context of the present balance of interests, given that it is established that the applicants' professional privilege and their rights of defence would be likely to sustain serious and irreparable harm should the Commission read the Set A documents, considerations of administrative efficiency and of resource allocation, in spite of their importance, can in principle prevail over the rights of the defence only if the Commission pleads very special circumstances justifying such harm. Otherwise, it would be possible in almost every case for the Commission to justify a serious interference with the rights of the defence by purely internal administrative considerations, which would be contrary to the fundamental nature of the rights of the defence. 187. The President considers that the Commission has not demonstrated in the present case the existence of such circumstances, since it has referred to disadvantages that might follow for it, by nature, from any suspension of the operation of a decision refusing to regard certain documents as covered by professional privilege. 188. Furthermore, in the context of the main application, the Commission has the possibility to lodge with the Court of First Instance, at the same time as its defence, an application pursuant to Article 76a of the Rules of Procedure for the main application to be dealt with under an expedited procedure. Admittedly, the judge dealing with the application for interim measures cannot guarantee that such an application will be granted in this case. None the less, account must be taken of the fact that if that application is granted, it will have the consequence of allowing judgment to be given speedily and, consequently, of rendering the Commission's present position less uncertain. In the particular circumstances of the present case, the President considers that the existence of that possibility does not give the Commission a greater interest in the application for interim measures being dismissed. 189. Nor has the Commission adduced precise and specific evidence capable of proving and evaluating the disadvantages which, in its submission, may affect the undertakings subject to the same investigation as the applicants should the operation of Article 2 of the decision of 8 May 2003 be suspended. 190. In the light of the foregoing, the balance of the interests in issue tilts in favour of suspending the operation of the provisions of the decision of 8 May 2003 whereby the Commission decides to open the sealed envelope containing the Set A documents, namely Article 2 of that decision. 191. Last, since the Set A documents will in all probability constitute an essential factor in the Court's assessment of the main application and since it has been established in the present order that the Commission must not read those documents before judgment is given in the main proceedings, it is appropriate to order that the Set A documents be kept at the Court Registry until the date of that judgment. On those grounds, THE PRESIDENT OF THE COURT OF FIRST INSTANCE hereby orders: 1. Cases T-125/03 R and T-253/03 R are joined for the purposes of this order. 2. The Council of the Bars and Law Societies of the European Union, the Algemene Raad van de Nederlandse Orde van Advocaten and the European Company Lawyers Association are granted leave to intervene in Cases T-125/03 R and T-253/03 R. 3. At the stage of the application for interim measures, the requests for confidential treatment submitted by the applicants in respect of certain matters in the procedural documents in Cases T-125/03 R and T-253/03 R and referred to as such in the letter of 16 September 2003 from the Registry to the applicants are granted. 4. The application for interim measures in Case T-125/03 R is dismissed. 5. The Commission's statement that it will not allow third parties to have access to the Set B documents pending judgment in the main proceedings in Case T-253/03 is noted. 6. In Case T-253/03 R, the operation of Article 2 of the Commission's decision of 8 May 2003 concerning a claim of legal privilege (Case COMP/E-1/38.589) is suspended pending the judgment of the Court in the main proceedings. 7. The sealed envelope containing the Set A documents will be kept by the Registry of the Court of First Instance pending the decision of the Court in the main action. 8. The remainder of the application for interim measures in Case T-253/03 R is dismissed. 9. The costs in Cases T-125/03 R and T-253/03 R are reserved. Luxembourg, 30 October 2003. H. Jung B. Vesterdorf Registrar President 1: Language of the case: English.