Opinion of the Advocate General — ECLI:EU:C:2010:229
Date: 2010-04-29
Language of the case: English
Subject matter: Competition;Agreements, decisions and concerted practices;Concerted practices
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible
Origin: United Kingdom

Summary 192. Since none of the pleas in law raised by Akzo and Akros is well founded and none of the arguments advanced by the interveners can be upheld, the appeal must be dismissed in its entirety. 193. If, however, the Court were to come to the conclusion that internal company or group communications with enrolled in-house lawyers are covered by legal professional privilege, it would have to set aside the judgment under appeal and then refer the case back to the General Court for further clarification of the facts (Article 61 of the Statute of the Court of Justice). It would then be necessary to establish whether, on the basis of their content and context, the two emails at issue served the exercise of the rights of defence. V – Costs 194. If, as I propose in this case, the appeal is dismissed, the Court will make a decision as to costs (first paragraph of Article 122 of the Rules of Procedure) the details of which are set out in Article 69 in conjunction with Article 118 of the Rules of Procedure. 195. It follows from the first subparagraph of Article 69(2) in conjunction with Article 118 of the Rules of Procedure that the unsuccessful party is to be ordered to pay the costs if they have been applied for. The second subparagraph of Article 69(2) of the Rules of Procedure provides that, where there are several unsuccessful parties, the Court is to decide how the costs are to be shared. As the Commission has applied for costs and the appellants have been unsuccessful in their submissions, the latter must be ordered to bear the costs; they must pay these costs jointly and severally since they brought the appeal jointly. (137) 196. Ireland, the Kingdom of the Netherlands and the United Kingdom of Great Britain and Northern Ireland, on the other hand, must each bear their own costs, in accordance with the first subparagraph of Article 69(4) of the Rules of Procedure. 197. Other parties to the proceedings who support an appeal by making submissions to the Court may also be ordered to bear their own costs, by analogous application of the third subparagraph of Article 69(4) of the Rules of Procedure. (138) As CCBE, ARNOVA, ECLA, ACCA and IBA have made submissions in support of the appeal brought by Akzo and Akros and those submissions have been unsuccessful, it seems appropriate – in derogation from what was said in point 195 – that they should each be ordered to pay their own costs. VI – Conclusion 198. In the light of the foregoing considerations, I propose that the Court should rule as follows: (1) The appeal is dismissed. (2) Ireland, the Kingdom of the Netherlands and the United Kingdom of Great Britain and Northern Ireland shall each bear their own costs. (3) The Conseil des barreaux européens, the Algemene Raad van de Nederlandse Orde van Advocaten, the European Company Lawyers Association, the American Corporate Counsel Association (European Chapter) and the International Bar Association shall each bear their own costs. (4) The remainder of the costs of the proceedings shall be borne jointly and severally by Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd. 1 – Original language: German. 2 – The term used in the language of the case. 3 – I use the term ‘enrolled in-house lawyer’ here and hereafter to mean a lawyer who works as an employee in the legal department of a company or group of companies and who has also been admitted to a Bar or Law Society in accordance with the applicable provisions of national law. 4 – This case has generated keen interest in the legal profession (see, inter alia, Gray, M., ‘The Akzo Nobel Judgment of the Court of First Instance’, Irish Journal of European Law 14 (2007), p. 229-242; Prieto, C., ‘Pouvoirs de vérification de la Commission et protection de la confidentialité des communications entre avocats et clients’, La semaine juridique – édition générale 2007, II-10201, p. 35-37; Cheynel, B., ‘Heurs et malheurs du‚ “legal privilege” devant les juridictions communautaires’, Revue Lamy de la Concurrence – Droit, Économie, Régulation 2008, No 14, p. 89-93; Mykolaitis, D., ‘Developments of Legal Professional Privilege under the Akzo/Akcros Judgment’, International Trade Law and Regulation 2008, p. 1-6; Weiß, W., ‘Neues zum legal professional privilege’, Europarecht 2008, p. 546-557). The anticipation of a final decision seems to have been so intense in certain quarters that legal commentators were writing on what they took to be a Court judgment as early as last year (Brüssow, R., ‘Das Anwaltsprivileg des Syndikus im Wirtschaftsstrafverfahren’, in: Arbeitsgemeinschaft Strafrecht des Deutschen Anwaltvereins [ed.], Strafverteidigung im Rechtsstaat, Baden-Baden 2009, p. 91-106; in this regard, see also Huff, M., ‘Recht und Spiel’, in: Frankfurter Allgemeine Zeitung No 183, 10 August 2009, p. 28). 5 – Regulation of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1). 6 – ‘The appellants’. 7 – Joined Cases T‑125/03 and T‑253/03 Akzo Nobel Chemicals and Akcros Chemicals v Commission [2007] ECR II‑3523. 8 – Council Regulation (EEC) No 17 of 6 February 1962: First Regulation implementing Articles 85 and 86 of the Treaty (OJ, English Special Edition 1959‑1962, p. 87). 9 – On the replacement of Regulation No 17 by Regulation No 1/2003, see Article 43(1) in conjunction with Article 45 of Regulation No 1/2003. 10 – In this regard and in relation to the following points, see paragraphs 1 to 14 of the judgment under appeal. 11 – Commission Decision C (2003) 85/4 of 30 January 2003, as amended by Commission Decision C (2003) 559/4 of 10 February 2003. 12 – The UK competition authority. 13 – The investigation took place in the context of antitrust case COMP/38.589 concerning plastic additives, in particular heat stabilisers; for further information in this regard, see the statement published by the Commission on 14 February 2003 (MEMO/03/33). 14 – C(2003) 1533 final. 15 – See point 7 of this Opinion, above. 16 – See point 16 of this Opinion, above. 17 – Order of the President in Joined Cases T-125/03 R and T-253/03 R Akzo Nobel Chemicals and Akcros Chemicals v Commission [2003] ECR II-4771. 18 – Order of the President in Case C-7/04 P[R] Commission v Akzo and Akcros [2004] ECR I-8739. 19 – The original of the appeal, initially sent by fax, was lodged at the Registry of the Court of Justice on 8 December 2007. 20 – Orders of the President of the Fifth Chamber of the General Court of 4 November 2003 and of 10 March 2004, and of the President of the First Chamber of the General Court of 26 February 2007. 21 – Order of the President of 8 July 2008 in Case C-550/07 P Akzo Nobel Chemicals and Akcros Chemicals v Commission and Others. 22 – See the six orders of the President of 5 February 2009 in Case C-550/07 P Akzo NobelChemicals and Akcros Chemicals v Commission and Others and – in relation to the second application by the LSEW – the order of the President of 17 November 2009 in Case C‑550/07 P Akzo Nobel Chemicals and Akcros Chemicals v Commission and Others. 23 – Orders of the Court of First Instance (now: the General Court) (Fifth Chamber) of 28 May 2004. 24 – Antitrust case COMP/38.589 – ‘Heat stabilisers’; see in this regard the Commission’s press release of 11 November 2009 (IP/09/1695). 25 – With regard to the requirement of an interest in bringing appeal proceedings, see Case C‑19/93 P Rendo and Others v Commission [1995] ECR I-3319, paragraph 13, and my Opinion in Case C‑413/06 P Bertelsmann & Sony v Impala [2008] ECR I‑4951, point 74. 26 – Rendo and Others v Commission (cited in footnote 25, paragraph 13); Case C‑174/99 P Parliament v Richard [2000] ECR I-6189, paragraph 33; Case C‑50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I‑6677, paragraph 21; Case C‑277/01 P Parliament v Samper [2003] ECR I‑3019, paragraph 28; Case C‑97/08 P Akzo Nobel and Others v Commission [2009] ECR I‑00000, paragraph 33; and Case C‑519/07 P Commission v Koninklijke Friesland Campina [2009] ECR I-00000, paragraph 63. 27 – See to this effect Case C‑313/90 CIRFS and Others v Commission [1993] ECR I‑1125, paragraphs 30 and 31. 28 – If Commission officials have taken note of the content of the document, the interference with a fundamental right may go on after the document has been returned or destroyed. In those circumstances, the interest in bringing proceedings likewise continues in being. 29 – Case 222/84 Johnston [1986] ECR 1651, paragraphs 18 and 19; Unión de Pequeños Agricultores v Council (cited in footnote 26, paragraph 39); Case C‑432/05 Unibet [2007] ECR I‑2271, paragraph 37; and Joined Cases C‑402/05 P and C‑415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I‑6351, paragraph 335. 30 – European Convention for the Protection of Human Rights and Fundamental Freedoms (‘ECHR’, signed in Rome on 4 November 1950). The Court has consistently held that the ECHR has special significance in determining the standard of fundamental rights which the European Union must observe; see, inter alia, Case C‑305/05 Ordre des barreaux francophones et germanophone and Others [2007] ECR I‑5305, paragraph 29, with further references); see also Article 6(3) TEU. 31 – The Charter of Fundamental Rights of the European Union was solemnly proclaimed first in Nice on 7 December 2000 (OJ 2000 C 364, p. 1) and then again in Strasbourg on 12 December 2007 (OJ 2007 C 303, p. 1). 32 – See, for example, Case 155/79 AM & S v Commission [1982] ECR 1575, in particular paragraph 18. See also the Opinion of Advocate General Léger in Case C‑309/99 Wouters and Others [2002] ECR I‑1577, point 182; and the Opinion of Advocate General Poiares Maduro in Ordre des barreaux francophones et germanophone and Others (cited in footnote 30, point 39). In addition, see the order in Case T‑30/89 Hilti v Commission [1990] ECR II‑163, paragraphs 13 and 14. 33 – This is the case in the United Kingdom and Ireland, which operate ‘common law’ legal systems. 34 – Legal professional privilege is enshrined in constitutional law in particular in Bulgaria (Article 30(5) of the Bulgarian Constitution) and Spain (Article 24(2) of the Spanish Constitution); furthermore, legal professional privilege is also based on constitutional provisions in Italy, Portugal and Romania, among others, and on statutory provisions with the status of constitutional law in Sweden. 35 – It is true that the case-law of the European Court of Human Rights (ECtHR) usually refers only to Article 8 of the ECHR; in this regard, see, for example, Campbell v the United Kingdom, 25 March 1992, Series A No. 233; Niemietz v.Germany, 16 December 1992, Series A No. 251-B; Foxleyv.the United Kingdom, No. 33274/96, 20 September 2000; Smirnovv.Russia, No. 71362/01, 7 June 2007, ECHR 2007-VII; and André and Otherv.France, No. 18603/03, 24 July 2008. However, mention is sometimes also made of Article 6 of the ECHR (see, for example, Niemietzv.Germany, op. cit., § 37, and Foxleyv.the United Kingdom, op. cit., § 50). 36 – It is true that, at the time when the Commission decisions at issue were adopted, the Charter of Fundamental Rights did not yet produce binding legal effects comparable to primary law. However, as a material legal source, it shed light even then on the fundamental rights which are guaranteed by EU law (see, inter alia, Case C‑432/05 Unibet [2007] ECR I‑2271, paragraph 37; Case C‑540/03 Parliament v Council [2006] ECR I‑5769, paragraph 38; and point 108 of my Opinion in the latter case. 37 – AM & S (cited in footnote 32, paragraphs 20 and 23); see to the same effect the judgment of the ECtHR in André and Otherv.France (cited in footnote 35, § 41). 38 – A lawyer is more commonly described in German legal terminology as ‘Organ der Rechtspflege’ (organ of the administration of justice); however, in so far as is relevant here, there is no substantive difference between that term and the phrase ‘collaborating in the interests of justice’ used by the Court of Justice in AM & S. 39 – AM & S (cited in footnote 32, paragraphs 20, 23 and 24); similarly, the judgment of the ECtHR in Niemietzv.Germany (cited in footnote 35, § 37). 40 – Ordre des barreaux francophones et germanophone and Others (cited in footnote 30, paragraph 32). 41 – The Commission’s powers of investigation in reviewing mergers of European companies under Article 13 of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation, OJ 2004 L 24, p. 1) are similar to, and only slightly less extensive than, those under Article 20 of Regulation No 1/2003. 42 – Cited in footnote 32. 43 – I am referring to paragraphs 10 to 43 of the appeal here. 44 – AM & S (cited in footnote 32, paragraphs 21 and 22). 45 – In so far as the Commission calls into question the connection with the rights of defence in this case, it does so only in the context of the appellants’ interest in bringing proceedings; see in this regard points 33 to 45 of this Opinion, above. 46 – Ireland goes further than this, in that it seems to want to extend the protection afforded by legal professional privilege even to in-house lawyers whose ‘independence’ is guaranteed by provisions of employment law alone (paragraph 12 of the statement in intervention). 47 – A Netherlands enrolled in-house lawyer. 48 – The term ‘Cohen advocaat’ refers to the name of the president of a working group set up ahead of the reform of the Netherlands rules governing professional ethics. 49 – AM & S (cited in footnote 32, paragraphs 21 and 27). 50 – Opinion of Advocate General Sir Gordon Slynn in AM & S (cited in footnote 32, at p. 1655). 51 – AM & S (cited in footnote 32, paragraph 24). 52 – AM & S (cited in footnote 32, paragraphs 21 and 27). 53 – See also the Opinion of Advocate General Léger in Wouters and Others (cited in footnote 32, point 181): ‘[The independence of lawyers] must also be demonstrated vis-à-vis the client, who may not become his lawyer’s employer.’ 54 – Paragraph 168 of the judgment under appeal. 55 – Namely the professioneel statuut voor de advocaat in dienstbetrekking (rules of professional practice applicable to enrolled in-house lawyers). 56 – The background to this discussion was the differing views of the parties on the ‘incentive structure’ for the activities of enrolled in-house lawyers and external lawyers. 57 – This is the case in particular in Germany. In the Netherlands, too, according to information provided to the Court at the hearing, an advocaat in dienstbetrekking is permitted to work for external clients. 58 – The situation is different only where an enrolled in-house lawyer, in addition to his work in the legal department of an undertaking or group of undertakings, also works for external clients unconnected with his employer. His communications with such external clients are protected by legal professional privilege because he is independent of them. 59 – Paragraphs 44 to 48 of the appeal. 60 – Case C‑334/03 Commission v Portugal [2005] ECR I‑8911, paragraph 24; and Case C‑300/04 Eman and Sevinger [2006] ECR I‑8055, paragraph 57; see to similar effect, previously, Joined Cases 117/76 and 16/77 Ruckdeschel and Others [1977] ECR 1753, paragraph 7; Case 215/85 Raiffeisen Hauptgenossenschaft [1987] ECR 1279, paragraph 23; and Case C‑85/97 SFI [1998] ECR I‑7447, paragraph 30. 61 – Protocol No 12 to the ECHR was opened for signature in Rome on 4 November 2000 and entered into force on 1 April 2005. It has not as yet been signed by all the Member States of the European Union and has been ratified by only a small number of them (Spain, Luxembourg, the Netherlands, Romania, Cyprus and Finland); see in this regard the status of ratifications published on the Council of Europe’s website at <http:conventions.coe.int> (last visited on 21 February 2010). This low level of commitment moderates the significance of the protocol for the purposes of the resolution of this case. 62 – Case C‑344/04 IATA and ELFAA [2006] ECR I‑403, paragraph 95; Case C‑303/05 Advocaten voor de Wereld [2007] ECR I‑3633, paragraph 56; Case C‑127/07 Arcelor Atlantique et Lorraine and Others (‘Arcelor’) [2008] ECR I‑9895, paragraph 23; and Case C‑558/07 S.P.C.M and Others [2009] ECR I-0000, paragraph 74. 63 – See to this effect Arcelor (cited in footnote 62, paragraph 26). 64 – See points 48 and 49 of this Opinion, above. 65 – See the comments made on the first part of the first plea in law, in particular points 61 to 72 of this Opinion. 66 – AM & S (cited in footnote 32, paragraph 18). 67 – See once again in this regard the comments made on the first part of the first plea in law, in particular points 66 to 71 of this Opinion. 68 – Paragraph 52 of ECLA’s response. 69 – Paragraph 52 of the Akzo and Akcros’ appeal. 70 – Paragraph 170 in conjunction with paragraph 177 of the judgment under appeal. 71 – See to the same effect the first paragraph of Article 220 EC and Article 164 of the EEC Treaty. 72 – See for example – in relation to the withdrawal of administrative measures giving rise to individual rights – Joined Cases 7/56 and 3/57 to 7/57 Algera and Others v Common Assembly of the ECSC (‘Algera’) [1957] ECR 39, at p. 55, and – in relation to the protection of fundamental rights at European Union level – Case 11/70 Internationale Handelsgesellschaft [1970] ECR 1125, paragraph 4. 73 – See, for example, Internationale Handelsgesellschaft (cited in footnote 72, paragraph 4); Case 4/73 Nold v Commission [1974] ECR 491, paragraph 13; Case 44/79 Hauer [1979] ECR 3727, paragraph 15; Joined Cases 46/87 and 227/88 Hoechst v Commission [1989] ECR 2859, paragraph 13; Joined Cases C-387/02, C‑391/02 and C-403/02 Berlusconi and Others [2005] ECR I-3565, paragraphs 68 and 69; Advocaten voor de Wereld (cited in footnote 62, paragraph 45); and Case C‑555/07 Kücükdeveci [2010] ECR I-0000, paragraph 20. 74 – See, for example, Algera (cited in footnote 72, at p. 56); AM & S (cited in footnote 32, paragraphs 18 to 21); and Joined Cases C‑120/06 P and C‑121/06 P FIAMM and FIAMM Technologies v Council and Commission (‘FIAMM’) [2008] ECR I‑6513, paragraphs 170, 171 and 176. 75 – See to this effect, for example, Internationale Handelsgesellschaft (cited in footnote 72, paragraph 4) and the Opinions of Advocate General Roemer in Case 5/71 Zuckerfabrik Schöppenstedt v Council [1971] ECR 975, at p. 989, and of Advocate General Poiares Maduro in FIAMM (cited in footnote 74, points 55 and 56). 76 – See to this effect the Opinions of Advocate General Roemer in Zuckerfabrik Schöppenstedt v Council (cited in footnote 75, at p.1989) and of Advocate General Poiares Maduro in FIAMM (cited in footnote 74, points 55 and 56). 77 – Case C‑144/04 Mangold [2005] ECR I‑9981, paragraph 75, and Kücükdeveci (cited in footnote 73, paragraph 21). 78 – The prohibition of age discrimination is enshrined in particular in Article 6 of the Finnish Constitution and – specifically in relation to employment – in Article 59(1) of the Portuguese Constitution. 79 – Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303 p. 16); see in this regard Kücükdeveci (cited in footnote 73, paragraph 21). 80 – Again, see expressly to this express effect now Kücükdeveci (cited in footnote 73, paragraph 22). 81 – Fundamental in this regard are Case T‑7/89 Hercules Chemicals v Commission [1991] ECR II‑1711, paragraph 54; Joined Cases T‑10/92 to T‑12/92 and T‑15/92 Cimenteries CBR and Others v Commission [1992] ECR II‑2667, paragraph 38; and Case T‑65/89 BPB Industries and British Gypsum v Commission [1993] ECR II‑389, paragraphs 29 and 30, the latter confirmed in Case C‑310/93 P BPB Industries and British Gypsum v Commission [1995] ECR I‑865. 82 – In particular, as was discussed at the hearing, the Commission has no power to use direct force under Article 14 of Regulation No 17 or Articles 20 and 21 of Regulation No 1/2003. 83 – This is the case in particular in Bulgaria, the Czech Republic, Estonia, Greece, France, Italy, Cyprus, Luxembourg, Hungary, Austria, Romania, Slovenia, the Slovak Republic, Finland and Sweden. With specific regard to the legal position in Cyprus, it should also be noted that, while practising advocates may be members of an undertaking’s board of directors, they may not work as employees or managing directors of that undertaking. 84 – Although German law allows in-house lawyers to be members of a Bar or Law Society (Syndikusanwälte), it does not grant them legal professional privilege in respect of internal company communications with their employer. In-house lawyers in Greece, on the other hand, despite being unable to become members of a Bar or Law Society, appear in certain circumstances to enjoy a comparatively extensive professional privilege. 85 – Denmark, Spain, Latvia, Lithuania, Malta and Romania fall into this category. Moreover, the legal position in Belgium is at present extremely unclear. It is true that specific legal provisions on the professional status of juristes d’entreprise (society of in-house lawyers), who are subject to particular professional ethical obligations if registered with the Institut des juristes d’entreprise (bar association for in-house lawyers) (IJE), have been in force since the year 2000. However, the professional privilege applicable to Belgian juristes d’entreprise appears – not least because Article 5 of the Law of 1 March 2000 makes no reference to Article 456 of the Belgian Code pénal (Criminal Code) – to be less extensive than that applicable to avocats (lawyers) and, furthermore, does not currently appear to be recognised by the Belgian competition authority (Auditoriat du Conseil de la concurrence) as covering internal company communications with in-house lawyers (see in this regard Marchandise, P., and Sabbe, S., ‘Akzo‚ “op zijn Belgisch”: de renaissance van het surrealisme?’, TBM-RCB 2009, p. 54; Cattaruzza, J., ‘Reactie IBJ op het gewijzigd standpunt van het Auditoriaat inzake vertrouwelijkheid adviezen bedrijfsjurist’, TBM-RCB 2008, p. 42); the matter awaits clarification by the Belgian courts. 86 – This appears to be the case, for example, in Finland and Slovenia. In Belgium also, the position currently adopted by the competition authorities (see footnote 85 above) can ultimately be explained by their having drawn on the case-law of the courts of the Union, in particular the judgment, under appeal here, in Joined Cases T‑125/03 and T‑253/03. 87 – This includes the United Kingdom and Ireland, but not Cyprus (see footnote 83 above); the legal position in Malta seems unclear. It must be noted incidentally that, in some non-Member States from the common-law area, in particular the United States of America, the protection afforded by legal professional privilege can also in certain circumstances be extended to in-house lawyers (see in this regard, fundamentally, the judgment of the US Supreme Court in Upjohn v United States, 449 U.S. 383 (1981); see also Walkowiak, V.S., ‘Attorney-client privilege in civil litigation’, American Bar Association, Illinois, 2008, p. 7). This does not, however, appear to be an unbroken trend in the common-law world; thus, for example, the Australian Federal Court, despite its essential recognition of ‘legal professional privilege for in-house counsel’, seems to have been subjecting the independence of in-house lawyers to increasing scrutiny of late (see the decisions of the Federal Court of Australia in Telstra v Minister for Communications, Information Technology and the Arts [No 2] [2007] FCA 1445 and Rich v Harrington [2007] FCA 1987). 88 – The other Member States are, more specifically, Greece, Portugal and Poland. With respect to Poland, it must be pointed out that Polish law recognises the separate profession of radcowie prawni (legal adviser), whose members are subject to similar professional ethical obligations as adwokaci (lawyers); when employed as salaried in-house lawyers, they are covered by a professional privilege similar to legal professional privilege. 89 – See in particular the Netherlands and Poland. The current legal position in Belgium is also based on a more recent law, although, as I have already mentioned, the substance of that position is at present unclear (see footnote 85 above). In France, a ‘réforme des professions du droit’ (reform of the legal professions) is under discussion (see in this regard inter alia the report of the Darrois-Kommission, presented to the French President on 8 April 2009), although this does not yet appear to have led to a change in the current law relating to legal professional privilege, nor even to a draft law with regard to that specific question; draft Law No 2383 on the modernisation of the legal professions (projet de la loi de modernisation des professions judiciaries et juridiques réglementées), introduced in March 2010, in any event concerns only some other partial aspects of that reform and does not concern legal professional privilege. 90 – With regard to Regulation No 1/2003, see Parliamentary Document A5‑0229/2001 final (Evans Report), specifically Amendment 10 relating to Article 14(3) of the Commission’s proposal for a regulation COM(2000) 582 final; with regard to Regulation No 139/2004, see Parliamentary Document A5‑0257/2003 final (Della Vedova Report), specifically Amendment 5 relating to the 34th recital and Amendment 25 relating to Article 13(1) of the Commission’s proposal for a regulation COM(2002) 711 final. 91 – In the case of Regulation No 1/2003, the Parliament as a whole did not itself support the amendments proposed by its own members. With regard to Regulation No 139/2004, while the amendments were approved by the Parliament, the Council did not include them in the Regulation. 92 – The term used in the language of the case. 93 – Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998 to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained (OJ 1998 L 77, p. 36). 94 – See in particular Articles 2 and 6 of Council Directive 77/249/EEC of 22 March 1977 to facilitate the effective exercise by lawyers of freedom to provide services (OJ 1977 L 78, p. 17). 95 – AM & S (cited in footnote 32, paragraph 26). 96 – Article 23(2) in conjunction with Article 2(1)(3)(b) of Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing (OJ 2005 L 309, p. 15); see to the same effect Article 6(3)(2) in conjunction with Article 2a(5) of the earlier Council Directive 91/308/EEC of 10 June 1991 on prevention of the use of the financial system for the purpose of money laundering (OJ 1991 L 166, p. 77), as amended by Directive 2001/97/EC (OJ 2001 L 344, p. 76); see also in this regard Ordre des barreaux francophones et germanophone and Others, cited in footnote 30. 97 – Recital 19 in the preamble to Directive 2005/60. 98 – The FATF (or Groupe d’action financière, GAFI) is an inter-governmental body which was established in Paris in 1989 by the then ‘G 7’ countries and now has 35 members, including the European Commission. 99 – The interpretative notes are contained in the ‘40 Recommendations’ which the FATF published in 2003 (available at http://www.fatf-gafi.org, last visited on 10 February 2010). Under point (e) of the glossary to those recommendations, employees are excluded from the meaning of ‘[d]esignated non-financial businesses and professions’. 100 – On the question of independence, see, in addition, my comments on the first plea in law, in particular points 61 to 72 of this Opinion. 101 – AM&S (cited in footnote 32, paragraphs 21 and 22); see also Ordre des barreaux francophones et germanophone and Others (cited in footnote 30, paragraphs 32 and 35), where the Court makes clear the link between legal professional privilege and judicial proceedings or the preparation for such proceedings; see in addition my comments on the first plea in law (point 54 of this Opinion, above). 102 – Paragraph 172 (in fine) of the judgment under appeal. 103 – Case C‑110/03 Belgium v Commission [2005] ECR I-2801, paragraph 30; Case C‑2/06 Kempter [2008] ECR I‑411, paragraph 37; and Case C‑201/08 Plantanol [2009] ECR I-00000, paragraphs 43 and 44. 104 – Case C‑226/08 Stadt Papenburg [2010] ECR I-00000, paragraph 45; similarly, see Case C‑63/93 Duff and Others [1996] ECR I-569, paragraph 20; and Case C‑76/06 P Britannia Alloys & Chemicals v Commission [2007] ECR I-4405, paragraph 79. 105 – Case C‑158/06 ROM-projecten [2007] ECR I-5103, paragraph 25; and Case C‑345/06 Heinrich [2009] ECR I-00000, paragraph 44. 106 – AM&S (cited in footnote 32); see in this regard my comments on the first plea in law (points 52 to 75 of this Opinion, above). 107 – See, incidentally, recital 5 in the preamble to Regulation No 1/2003, which states that proof of an infringement of Articles 81(1) and 82 EC (now Articles 101(1) and 102 TFEU) must be furnished ‘to the requisite legal standard’, without prejudice to the national legal provisions on the standard of proof. 108 – See to this effect Article 51 of the Charter of Fundamental Rights, as well as Case C‑442/00 Rodríguez Caballero [2002] ECR I‑11915, paragraph 31; Mangold (cited in footnote 77, paragraph 75); and Case C‑427/06 Bartsch [2008] ECR I‑7245, paragraphs 15 and 25. 109 – In any event, reliance on the rights of defence would not on its own be capable of harmonising the legal position in every case. On the contrary, for most Member States, whose national law currently does not extend the protection of legal professional privilege to internal company or group communications, any change in the case-law established in AM & S would lead to a compartmentalisation of the legal position at national and EU levels. 110 – On the interpretation of acts of the European Union in a manner compatible with the fundamental freedoms, see, for example, Ordre des barreaux francophones et germanophone and Others (cited in footnote 30, paragraph 28) and Joined Cases C‑402/07 and C‑432/07 Sturgeon and Others [2009] ECR I-00000, paragraphs 47 and 48; see to similar effect Case C-413/06 P Bertelsmann & Sony v Impala [2008] ECR I-4951, paragraph 174. 111 – It is true that the European Union, as the Commission rightly objects, is not directly bound by Article 6 of the ECHR because it has not as yet acceded to that convention. None the less, that provision is the expression of fundamental principles based on the rule of law which are also recognised as general legal principles in Union law (see inter alia Case C‑185/95 P Baustahlgewebe v Commission [1998] ECR I‑8417, paragraph 21; and Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others v Commission [2004] ECR I‑123, paragraph 68. In addition, rights contained in the Charter of Fundamental Rights which correspond to rights guaranteed by the ECHR have the same meaning and scope as those laid down in the ECHR (first sentence of Article 52(3) of the Charter of Fundamental Rights). 112 – Judgment in André and Otherv. France (cited in footnote 35, § 42 in fine); indeed, at the beginning of that judgment (§ 15), the ECtHR, under the heading ‘5. Le droit communautaire’ (5. Community Law) cites extracts inter alia from AM & S (cited in footnote 32, paragraphs 18 to 24). 113 – Thus, for example, the ECtHR extends the protection of Article 8 of the ECHR to business premises but at the same time points out that that protection need not necessarily be as extensive as it would in the case of private premises (the judgment in Niemietzv.Germany, cited in footnote 35, § 31, final clause, reads: ‘[the entitlement of Contracting States to interfere] might well be more far-reaching where professional or business activities or premises were involved than would otherwise be the case’; see, similarly, the phrase ‘to a certain degree’ in § 29 of the same judgment; see also ECtHR, Société ColasEstand Others v. France, judgment of 16 April 2002, No. 3791/97, ECHR 2002-III, §§ 41 and 49). Similarly, the German Bundesverfassungsgericht (Federal Constitutional Court) has held, with regard to protection of the right to a private life, that the public authorities have access to all but ‘the core of a person’s private life’ (Order of 14 September 1989, BVerfGE 80, 367, which contains a detailed definition of the protection afforded to personal diary records against seizure by the prosecution services). 114 – In Germany, for example, Paragraph 46(1) of the Bundesrechtsanwaltsordnung (Rules governing the profession of lawyer in the Federal Republic of Germany) prohibits a Syndikusanwalt from representing his employer in his capacity as lawyer before courts and tribunals; a Syndikusanwalt may therefore appear only before courts not subject to the statutory requirement of representation by a lawyer, as may everyone – including non-lawyers. The Courts of the European Union apply a similar practice: with regard to applications signed by directors of the applicants who are members of a Bar or Law Society, see the orders in Case T‑79/99 Euro-Lex v OHIM [1999] ECR II‑3555, paragraphs 28 and 29; Case T‑184/04 Sulvida v Commission [2005] ECR II‑85, paragraphs 9 and 10; and Case T-40/08 EREF v Commission [2009] ECR II-00000, paragraphs 25 and 26, against which an appeal is pending (Case C‑75/10 P EREF v Commission); with regard to an appeal signed by the applicant himself, see also the order in Case C‑174/96 P Lopes v Court of Justice [1996] ECR I‑6401, paragraph 11. 115 – ECtHR Meftah and Others v. France, judgment of 26 July 2002 (Application No 32911/96, ECHR 2002-VII, §§ 45 to 48 and the case-law cited there). 116 – AM&S (cited in footnote 32, paragraph 18). 117 – See also the Opinion of Advocate General Léger in Wouters and Others (cited in footnote 32, point 181). 118 – See my comments on the first part of the first plea in law, in particular points 61 to 72 of this Opinion. 119 – ‘The mere possibility of abuse is outweighed by the need to respect the confidentiality attached to the lawyer-client relationship’ (ECtHR, Campbell v. United Kingdom, cited in footnote 35, § 52 in fine). 120 – See in this regard my comments on the first plea in law in points 64 to 71 of this Opinion. 121 – Ireland relies in this regard on Article 15 of the Charter of Fundamental Rights, ECLA on Article 1 of the First Additional Protocol to the ECHR. 122 – Case 30/59 De Gezamenlijke Steenkolenmijnen in Limburg v High Authority [1961] ECR 1, at p. 18; Case C‑185/00 Commission v Finland [2003] ECR I‑14189, paragraph 91; and Case C‑113/07 P Selex Sistemi Integrati v Commission andEurocontrol [2009] ECR I-00000, paragraph 54. 123 – Case C‑155/91 Commission v Council [1993] ECR I‑939, paragraphs 23 and 24; and Case T‑114/02 Babyliss v Commission [2003] ECR II‑1279, paragraph 417; see also, to much the same effect, Case C‑301/06 Ireland v Parliament [2009] ECR I-00000, paragraph 34 in conjunction with paragraph 57, in which the Court did not consider the submission in respect of fundamental rights put forward by the Slovak Republic in its capacity as intervener. 124 – Settled case-law; see, more recently, Case C‑202/07 P France Télécom v Commission [2009] ECR I-00000, paragraphs 59 and 60; Case C‑97/08 P Akzo Nobel and Others v Commission, cited in footnote 26, paragraph 38; and Case C‑554/08 P Carbone-Lorraine v Commission [2009] ECR I-00000, paragraph 32. 125 – AM & S (cited in footnote 32, in particular paragraphs 18 to 22, especially paragraph 21); to the same effect, see also the Opinion of Advocate General Warner in that case (pp. 1630 and 1631) See in addition the settled case-law on the autonomous interpretation of Community- or Union-law concepts, for example Case 327/82 Ekro [1984] ECR 107, paragraph 11; Case C‑195/06 Österreichischer Rundfunk [2007] ECR I‑8817, paragraph 24; and Case C‑66/08 Kozlowski [2008] ECR I‑6041, paragraph 42. 126 – Internationale Handelsgesellschaft (cited in footnote 72, paragraph 3) and Hauer (cited in footnote 73, paragraph 14). 127 – Hauer (cited in footnote 73, paragraph 14). 128 – See to this effect, in relation to the exercise of the fundamental freedoms of the internal market, Case C‑415/93 Bosman [1995] ECR I‑4921, paragraph 81. 129 – See also Opinion 2/94 (‘ECHR accession’) [1996] ECR I‑1759, paragraphs 23 and 24; and Case C‑403/05 Parliament v Commission [2007] ECR I‑9045, paragraph 49. 130 – Articles 20 and 21 of Regulation No 1/2003, which will apply to future cases, also have a basis in the Treaties, that is to say Article 83 EC (now Article 103 TFEU). 131 – AM & S (cited in footnote 32, in particular paragraphs 18 and 22). 132 – See point 47 of this Opinion, above. 133 – Case 107/83 Klopp [1984] ECR 2971, paragraph 17; and Case C‑309/99 Wouters and Others [2002] ECR I‑1577, paragraph 99. 134 – See inter alia Case C‑279/93 Schumacker [1995] ECR I‑225, paragraph 21, concerning direct taxation; Joined Cases C‑11/06 and C‑12/06 Morgan and Bucher [2007] ECR I‑9161, paragraph 24, concerning the organisation of education systems and the content of teaching; and Case C‑169/07 Hartlauer [2009] ECR I‑00000, paragraph 29, concerning the organisation of social security systems. 135 – See to that effect Klopp (cited in footnote 133, paragraphs 17 and 18); see also the Opinion of Advocate General Poiares Maduro in Joined Cases C‑94/04 and C‑202/04 Cipolla and Others [2006] ECR I‑11421, point 82. 136 – See in this regard points 133 and 134 of this Opinion, above. 137 – See to the same effect Joined Cases C‑122/99 P and C‑125/99 P D and Sweden v Council [2001] ECR I‑4319, paragraph 65; in that case, D and the Kingdom of Sweden had in fact brought two separate appeals but were none the less ordered to pay the costs jointly and severally. 138 – See to that effect, for example, Case C‑23/00 P Council v Boehringer [2002] ECR I‑1873, paragraph 56; Joined Cases C‑172/01 P, C‑175/01 P, C‑176/01 P and C‑180/01 P International Power and Others v NALOO [2003] ECR I‑11421, paragraph 187; and Case C‑141/08 P Foshan Shunde Yongjian Housewares & Hardware v Council [2009] ECR I-00000, paragraph 118.