OPINION OF SIR GORDON SLYNN — CASE 155/79 
concerned is using delaying tactics, in 
which case the competent national courts 
should make short shrift of it, or where a 
genuine question of principle is at stake, 
in which case it will be right that that 
question should be properly considered. 
VII — Conclusions 
It follows, in my opinion, that Article 1 (b) of the Commission's Decision of 
9 July 1979 should be declared void and that the applicant is entitled to its 
costs as against the Commission. 
If your Lordships share my view, the British Government and the CCBE, as 
successful interveners, who asked for costs, will also be entitled to them as 
against the Commission — see Anicie 69 (2) of the Rules of Procedure of 
the Court (the English text of which is, as I ventured to point out in Case 
130/75 Praisv Council [1976] 2 ECR 1589, at pp. 1609-1610, defective). The 
CCBE did not in fact ask for costs until the hearing, but that has been held 
to be sufficient — see Case 113/77 NTN Bearing Co. v Council [1979] ECR 
1185, at pp. 1192, 121C-1211, and 1274. As regards the French Government, 
I think that justice will be done if it is simply left to bear its own costs. 
OPINION OF ADVOCATE GENERAL SIR GORDON SLYNN 
DELIVERED ON 26 JANUARY 1982 
My Lords, 
In February- 1979, officials of the 
Commission required the applicants to 
make available" documents which they 
wished to ir·, in connection with an 
investigatici· being conducted pursuant 
to Article 14 (1) of Council Regulation 
No 17 of 6 Februan- 1962 (Official 
Journal English Special Edition, 1959· 
1962, p. 87). This was said to be an 
investigation of competitive condition« 
concerning the production and distri­
bution of zinc metal and its allovs and 
zinc concentrates in order to venf\ that 
there is no infringement of Anieles ï»r> 
and 86 of the EEC Trean Thr 
applicants produced copies of mos: ot 
the documents. Some, however, were not 
produced; so far as relevant, on the basis 
that they were covered by lepal 
confidentiality, which entitled the 
1642
AM k S v COMMISSION 
applicants io withhold them. Following 
discussion and correspondence, the 
Commission, by Article 1 (b) of a 
decision dated 6 July 1979, taken 
pursuant to Article 14 (3) of the regu­
lation, required the applicants to produce 
those documents. The applicants 
thereupon applied to the Court pursuant 
to Anicie 173 of the EEC Treaty for a 
declaration that Article í (b) of the 
decision was void, or alternatively was 
void in so far as it necessarily required 
the applicants to disclose to the 
Commission's inspector the whole of 
each of the documents for which the 
applicants claimed protection on grounds 
of legal confidence. After the applicants, 
the Commission, the Consultative 
Committee of the Bars and Law Societies 
of the European Community ("the 
CCBE") and the governments of the 
United Kingdom and France had made 
written and oral submissions, Mr 
Advocate General Warner gave his 
opinion on 28 January 1981 that Article 
1 (b) of the decision should be declared 
void. The factual background of the 
dispute in the issues as they then 
appeared are fully set out in his opinion, 
and I do not consider that it is of any 
assistance to the Court for me to repeat 
them. 
On 4 February 1981 the Court, being of 
the opinion that certain details (such as 
the date on which, and the place where, 
the documents were drawn up, the exact 
occupation and status of the author and 
the addressee, and sufficient information 
as to the nature of the contents of the 
documents) were not available, made an 
order that the oral procedure should be 
re-opened and that the documents 
should be sent to the Court in a sealed 
envelope, in order that a repon might be 
made on them. 
These documents were sent and the 
Judge-Rapporteur and I examined them. 
A record of the nature of the documents 
was made, which was communicated to 
the panies. Although the documents 
produced fall broadly into the categories· 
summarized by Mr Advocate General 
Warner at page 12 of his opinion, I think 
that in view of the importance of the 
case it is proper to identify more parti­
cularly the nature of the documents in 
issue. 
The documents in issue can be divided 
into the following categories, first those 
asking for advice, second those giving 
advice and third those summarizing 
advice: 
A — (1) requests for legal advice made 
by a solicitor employed by a 
company providing, inter alia, 
legal advice to the applicants 
("the Service Company") 
destined for two barristers in 
private practice (Document 
No 1): 
(2) requests for legal advice made 
by executives of the applicants 
and sent to a solicitor in 
private practice in England 
(Document No 5): 
(3) a telex suggesting that legal 
advice should be sought from 
solicitors in private practice in 
a third country relating to the 
law of that country, sent by an 
executive of the applicants to 
an executive of the applicants' 
immediate parent (Document 
No 13): 
1643
OPINION OF SIR GORDON SLYNN — CASE 155/79 
B — (1) a memorandum containing 
legal advice concerning the 
law of a third country sent by 
a solicitor qualified in that 
country and employed by a 
member of the group of which 
the applicants are a part, to 
the employees of another 
member of the group other 
than the applicants (Document 
No 2): 
(2) a letter containing legal advice 
concerning the law of a third 
country sent by a firm of 
solicitors in private practice in 
that country to a person 
employed by the applicants' 
immediate parent in the group 
(Document No 3) : 
(3) a letter containing legal advice 
sent from a solicitor in private 
practice in England to an 
executive of a member of the 
group other than the 
applicants (Document No 7): 
(4) letters containing legal advice 
sent by a solicitor in private 
practice in England to various 
executives of the applicants 
(Document No 4): 
(5) a memorandum containing 
legal advice sent by a solicitor 
employed by the Service 
Company to an executive of 
the applicants (Document No 
10): 
C — (1) a memorandum summarizing 
legal advice given by a 
solicitor employed by the 
Service Company and sent by 
one executive of the applicants 
to another (Document No 
11): 
(2) a memorandum summarizing 
legal advice given by a 
solicitor employed by the 
Service Company and sent by 
an executive of the applicants 
to an executive of its 
immediate parent (Document 
No 16): 
(3) a memorandum summarizing 
legal advice given by a 
solicitor in private practice in 
England sent by one executive 
of the applicants to another 
(Document No 12): 
(4) telexes summarizing legal 
advice received from barristers 
and solicitors in private 
practice in a third country 
concerning the law of that 
country and passing between 
an executive of the applicants 
and an executive of its 
immediate parent (Document 
No 17). 
The parties were invited to state at the 
re-opened oral hearing their views on the 
law as to, and legal opinions relating to, 
the existence and extent of the protection 
granted in investigative proceedings 
instituted by public authorities for the 
purpose of detecting offences of an 
economic nature, especially in the field 
of competition, to correspondence 
passing between 
(a) two lawyers, 
(b) an independent lawyer and his client, 
1644
AM & S v COMMISSION 
(c) an undertaking and a lawyer in a 
permanent contractual relationship, 
or who is an employee of the under­
taking, 
(d) a legal adviser to, and an employee 
of, an undertaking or an employee 
of an associated undertaking, 
(e) employees of an undertaking, or 
different but associated under­
takings, where the correspondence 
mentions legal advice given by an 
independent lawyer or a legal adviser 
serving one of the undertakings or 
other undertakings in the same 
group. 
At the re-opened oral hearing, further 
submissions were made on behalf of all 
those who participated in the first 
hearing, in the course of which counsel 
dealt not only with the specific matters 
referred to in the Court's order, but, as 
they were invited to do, with the 
questions of principle to be decided. 
It seems necessary, first, to decide what 
really are the issues to be considered in 
this application ai this stage. As Mr 
Advocate General Warner shows in 
detail, the Commission has been 
prepared to accept that, whatever the 
strict legal position, it would not use 
certain documents. In the decision itself, 
reference is made to the answer, given in 
reply to Written Question No 63/78 in 
the European Parliament asked by Mr 
Coustė, to the effect that the 
Commission "wishing to act fairly, 
follows the rules in the competition law 
of certain Member States and is willing 
not to use as evidence of infringements 
of the Community competition rules any 
strictly legal papers written 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 of 
the firm or association of firms 
concerned. When the Commission comes 
across such papers it does not copy 
them". The Commission asserted, how­
ever, that the Commission's inspector 
could look at the documents and ask 
questions "as far as is necessary for the 
purpose of establishing whether they 
should be used or not". By a letter to the 
applicant's solicitors dated 31 October 
1979 the Commission stressed that they 
had always accepted that the inspector 
need not read the letters in full. He was 
to be put in such a position that he 
would be satisfied "objectively and with 
reasonable certainty that the document is 
one which is protected under 
Community law". By its defence the 
Commission stated that it is "prepared to 
give an assurance that inspectors will be 
instructed not to use any knowledge 
which they may gain as a result of 
inspecting documents" for the purpose of 
deciding whether they are protected, 
and, secondly, that the inspector was 
authorized to look at documents only so 
far as was necessary to establish whether 
or not they should be used as evidence. 
Bv its rejoinder the Commission 
accepted (page 2) that "there is a broad 
general principle or policy that there is a 
right to obtain legal advice in 
confidence, and that this implies some 
1645
OPINION OF SIR GORDON SLYNN — CASE 155/79 
protection from disclosure for the 
documents seeking or giving that 
advice". It took the position that the sole 
issue was whether there was a procedure 
by which the question of protection 
should be decided and that the only 
procedure which existed was that the 
inspector should be left to decide the 
question fór himself. If the document 
was used and, at the end of the day, a 
decision was taken that there had been 
an infringement, the company concerned 
could apply to the Court to annul the 
decision under Article 173 of the Treaty. 
At the first oral hearing the Commission 
felt it right not to make submissions as to 
whether a principle of protection from 
disclosure existed as a matter of 
Community law. At the second hearing, 
counsel for the Commission submitted 
that four principles were relevant to the 
case, in the present sute of Community 
competition law, as facets of a general 
"principle of protection of legal 
confidence". These were as follows: 
(1) documents written to or by a lawyer 
which deal with the defence of a 
client in a procedure which has 
begun may not be used as evidence 
and may not be disclosed to anyone 
except the person responsible for 
deciding whether the document is 
protected by the principle or not. 
This principle applies whether the 
documents are found in the hands of 
the lawyer or his client and applies 
only where the lawyer is being 
consulted qua lawyer. 
(2) documents written to a lawyer or by 
a lawyer requesting or giving legal 
advice (even if they are not protected 
by the first principle), may not be 
used as evidence if they are found in 
the hands of the lawyer. Such 
documents need not be disclosed to 
anyone except the person responsible 
for deciding whether the document 
is protected or not. Such a principle 
applies only where the lawyer is 
being consulted qua lawyer and 
ceases to apply if the lawyer is 
himself assisting or participating in 
the unlawful activities of his client. 
(3) there must be some person other 
than the lawyer and his client who is 
responsible for deciding whether a 
document is entitled to protection 
and in the present state of 
Community law that person is the 
Commission's inspector. 
(4) where an authority, such as the 
Commission, has formally stated that 
it will not use certain documents as 
evidence (even when it is not 
prevented by law from using them in 
that way) enterprises are entitled to 
rely on that statement (unless it has 
been amended). If the Commission 
were in a particular case to use 
evidence of a kind which it said it 
would not use, that fact would be a 
ground for annulling the decision 
based on the evidence in question, if 
the evidence was important enough 
to make annulment of the decision 
appropriate. 
"Lawyer" is accepted by the Commission 
to cover both a lawyer in private practice 
and a salaried lawyer, employed by a 
1646
AM & S v COMMISSION 
company, so long as he is effectively 
subject to a comparable régime of pro­
fessional ethics and discipline as is the 
lawyer in private practice in the Member 
State in which he practises. 
As I understand the Commission's 
position, the fourth principle is accepted 
to be a principle of law as well as the 
other three, but on the basis of legal 
certainty or perhaps what in the common 
law would be called an estoppel. 
The applicants, whilst no doubt 
accepting that the first and fourth 
principles are better than nothing, 
certainly do not accept the second and 
third principles as framed. 
They contend for a wider statement of 
principle. In this they are supported by 
the United Kingdom Government and 
the CCBE. The French Government, 
whilst accepting the third principle if 
there is any rule of protection, rejects the 
others as formulated by the Commission 
as not being part of Community law. 
It is plain that the initial position taken 
by the applicants and the Commission 
that this case was solely about 
procedure, and that issues about the 
limits of protection could be worked out 
later, cannot be accepted. Indeed, it 
seems to me that the CCBE and counsel 
for the French Government were right at 
the outset when they contended that it 
was necessary to decide whether there 
existed any right to be protected before 
any question of procedure arose. The 
issue broadly is not how what appeared 
originally to be put forward by the 
Commission as an administrative 
concession should be implemented, but 
whether any principle of protection of 
legal confidence exists, and if so (a) its 
scope in relation to the documents in 
issue here, and (b) how a dispute about 
the right to claim benefit of that 
principle should be resolved. 
During the second oral hearing, counsel 
for the Commission stated that the 
Commission did not any longer wish to 
use documents numbered 1-10 in the list 
of documents which until then were in 
dispute. No doubt whatever the outcome 
of the case they will in fact adhere to 
that statement. At first glance it may 
seem tempting to take a short cut and to 
ignore those documents for the purpose 
of this opinion and for the Court's 
decision. In my view it would be wrong 
to do so. The parties are still at issue 
about the real question. The Commission 
asserts the right to see them, even 
though it is prepared to waive that right: 
the company denies that right. 
Moreover, they belong to a category of 
documents which is central to the 
questions which remain to be decided. In 
view of the time and attention given by 
the Court and the parties to this issue, it 
is in my view right, and perhaps 
inevitable, that the documents should be 
considered as a whole. 
The Commission's investigative powers 
for the purpose of carrying out the duties 
assigned to it by Anicie 89 of the EEC 
Treaty, and provisions adopted under 
Article 87 of the Treaty, are so far as 
relevant conferred by Article 14 of Regu­
lation No 17. It may "undertake all 
necessary investigations into under-
1647
OPINION OF SIR GORDON SLYNN — CASE 155/79 
takings and associations of under­
takings" and, to that end, its authorized 
officials are empowered to examine 
books and business records, to take 
copies of them, and to ask for oral 
explanations. There is no reference to 
any exemption or protection which may 
be claimed on the basis of legal 
confidence. Is that silence conclusive that 
no such protection is capable of applying 
in any form and in any situation? In my 
view it is not. The essential inquiry is, 
first, whether there is a principle of 
Community law existing independently 
of the regulation, and, secondly, whether 
the regulation does on a proper con­
struction restrict the application of that 
principle. The question is not whether a 
principle of Community law derogates 
from Article 14, but whether Article 14 
excludes the application of a principle of 
Community law. 
Accordingly, as I see it, in order to 
decide whether Article 1 (b) of the 
Commission's decision should stand it is 
necessary to resolve the questions: 
(a) whether there exists a general 
principle of Community law which, 
subject to the third question, protects 
documents containing what have 
been called legal confidences, and 
the contents of those documents, 
from production and use in judicial, 
quasi-judicial or administrative 
proceedings; 
(b) if so, whether the documents in issue 
in the present case are covered by 
that principle; 
(c) whether, properly construed, Regu­
lation No 17 (and in particular 
Article 14) prevents the principle 
from applying in the course of an 
investigation by the Commission; 
(d) how any question as to whether 
documents are covered by the 
principle is to be resolved in the 
absence of agreement between the 
Commission and the enterprise 
concerned. 
That general principles which have not 
been expressly stated in the Trean· or in 
subordinate legislaron may exist as pan 
of Community lav . the observance of 
which the Court is required to ensure. 
needs no emphasis. This was made clear 
in an article by Judge Pescatore to be 
found in Les Cahiers de Droit Européen 
in 1968 at p. 629. It does not seem to me 
that the principle is limited to 
"fundamental rights" which are more 
particularly dealt with in the article. It 
has a broader base. Such indeed appears 
to be accepted by both parties io this 
application. The Commission argue that 
there has to be a consensus among the 
laws of all the Member States, and that 
the Court cannot establish a principle 
which goes beyond that accepted by an\ 
one of the Member States, h cued no 
specific authority for thai proposition, 
nor indicated what is the necessary level 
or degree of consensus required io 
establish the existence of a general 
principle. The CCBE, whose vie»» 
broadly on the point were adopted b\ 
the applicants, submits that the aim ot 
Community law is to find the best 
solution in qualitative terms. ha\ inp 
regard to the spirit, orientation ano 
1648
AM í: S v COMMISSION 
general tendency of the national laws. In 
suppon it cites P. Reuter in Mélanges 
Rolin 1964, p. 273; the article by Judge 
Pescatore (supra) at pp. 654-655; Ipsen, 
Europäisches Gemeinschaftsrecht, 1972, 
p. 114; W. Ganshof van der Meersch, 
L'Ordre Juridique des Communautés 
Européennes, 1975, pp. 150 and 163; 
Louis, Ĺ 'Ordre Juridique Communautaire 
1979, p. 164, and Zweigert, Novelles 
1969, para. 1203. 
Mr Advocate General Lagrange adopted 
a comparable approach in Case 14/61 
Hoogovens v High Authority (1962) ECR 
253 at pp. 283-4 and it is reflected 
elsewhere (see for example Case 5/71, 
Zuckerfabrik Schöppenstedt v Council 
[1971] ECR 975 at 989 and Cases 63 to 
69/72, Werhan v Council [1973] ECR 
1229 at pp. 1259-1260), I do not set out 
these passages, but it seems to me 
valuable to remind the Court of the 
views of Judge Kutscher concerning the 
deduction of general principles of law 
from a study of the laws of the Member 
States: 
"There is complete agreement that when 
the Court interprets or supplements 
Community law on a comparative law 
basis it is not obliged to take the 
minimum which the national solutions 
have in common, or their arithmetic 
mean or the solution produced by a 
majority of the legal systems as the basis 
of its decision, The Court has to weigh 
up and evaluate the particular problem 
and search for the 'best' and 'most 
appropriate' solution." ("Methods of 
Interpretation as seen by a Judge at the 
Court of Justice", Judical and Academic 
Conference 1976 at p. 29). 
That national law may be looked at on a 
comparative basis as an aid to 
consideration of what is Community law 
is shown in many cases of which Cases 
3/54, Assider v High Authority [1954-
1956] ECR 63, 28/76, LTU v Euro-
control [1976] ECR 1541 at para. 3, 
814/79, Netherlands* Rüffer [19Í0] ECR 
3807, 4/73, Nold v Commission [1974] 
ECR 491 at para. 13; 3/65, Espėrance-
Longdoz v High Authority [1965] ECR 
1065 at 1090 may be taken as examples. 
Such a course is followed not to impon 
national laws as such into Community 
law, but to use it as a means of 
discovering an unwritten principle of 
Community law (see for example Case 
18/57, Nold v High Authority [1959] 
ECR 41 at 73-74, Case 36-38 and 40/59 
Geitling v High Authority [1960] ECR 
423 at p. 438 and at p. 450 (Mr 
Advocate General Lagrange); Case 
11 /70 Internationale Handelsgesellschaft v 
Einfuhr- und Vorratssteile Getreide [1970] 
ECR 1125 at paragraphs 3 and 4 and pp. 
1146-1147, Mr Advocate General 
Dutheillet de Lamothe). The suggestions 
made at times in this case, implicitly if 
not explicitly, that the applicants were 
trying to force into an unreceptive mould 
a purely local rule of the common law 
seems to me unfair to the argument of 
the applicants, who were seeking, like 
the CCBE and the United Kingdom 
Government, to distil a principle which is 
part of Community law by reference to 
national laws and which, in its detailed 
application, required adaptation to 
Community procedures. 
1649
OPINION OF SIR GORDON SLYNN — CASE 155/79 
In looking at national laws it does not 
seem to me that it can be a pre-condition 
of the existence of a rule of Community 
law that the principle should be 
expressed identically, or should be 
applied in identical form, in all of the 
Member States. Unanimity, as to a 
subject which is relevant to a Community 
law problem, may well be a strong 
indication of the existence of a rule of 
Community law. Total unanimity of 
expression and application is not, 
however, necessary. It is at best unlikely, 
not least as the Community grows in 
size. It seems to me highly probable that 
there are differences in the various 
Member States in the application of the 
principles of "la bonne administration de 
la justice", rejection of "un deni de 
justice" and in the "principe de proporti-
onalité" referred to on page 643 of the 
article in Les Cahiers de Droit Européen. 
Yet such differences do not prevent such 
principles from being part of Community 
law. Indeed, in Case 17/74 Transocean 
Marine Paint Association v Commission 
[1974] ECR 1063 it was accepted that a 
right to be heard existed even though Mr 
Advocate General Warner found, in the 
relevant context, that the rule audi 
alteram partem existed only in some of 
the Member States. The fact that 
proceedings in one Member State may 
be criminal, in others civil, that judicial 
procedures differ, that for historical 
reasons different practices are adopted, 
different conditions apply» makes 
divergence inevitable. In my opinion, 
what has to be looked for is a general 
principle, even if broadly expressed. If 
that is widely accepted then it may, if 
relevant, be found to be part of 
Community law. It is then for the Court 
to declare how that principle is worked 
out in the best and most appropiate way, 
to use Judge Kutscher's words, in the 
context of Community proceedings. Nor 
is the fact that in some Member States 
the general principle may have been 
modified or excluded, in certain contexts 
covered by legislation, fatal to the 
existence of the principle. It is for the 
Member States and (within their various 
powers) those who make the Community 
legislation to decide whether the general 
principle which exists should be modified 
or excluded. 
Because of these divergencies in 
procedure and practice, it is, in my view, 
important not to fasten too closely on a 
detailed comparison of particular labels 
or rules. What matters is the overall 
picture. Thus the question is not whether 
"legal professional privilege" (a 
misnomer and the right of the client) is 
identical with "le secret professionnel" 
(the duty, inter alia, of the lawyer), 
which plainly it is not, but whether from 
various sources a concept of the 
protection of legal confidence emerges, 
e.g. in England from the "privilege" and 
any rules as to the protection of 
confidentiality, in France from an 
amalgam of "le secret professionnel", 
"les droits de la défense" and rules 
applicable to "le secret des lettres 
confidentielles". 
The Court has received from the parties 
much detail as to the law and practice in 
1650
AM ti S v COMMISSION 
the various Member States. I refer to it 
with some trepidation, partly because 
each member of the Court has infinitely 
more knowledge of the position in his 
own Member State than a lawyer from 
another jurisdiction; partly because dis­
agreement as to what is the law of a 
particular Member State arose even 
during the oral hearing. Counsel for the 
French Government, apparently, does 
not accept that the CCBE have correctly 
appreciated or stated the law of France 
and other Member States, even though 
representatives of French Bars and the 
Bars of other Member States are 
associated with the CCBE, and even 
though lawyers from those Member 
States are quoted directly. He says they 
have got it wrong. For my own pan I do 
not accept his submission that United 
Kingdom counsel have not correctly 
stated the effect of the law of the United 
Kingdom, or his analysis of it. I am quite 
satisfied that in this particular area, he, 
in his turn, got it wrong by only looking 
at one pan of the subject. I do not say 
this in any sense by way of criticism. On 
the contrary the effons which he (as well 
as other counsel) made to deal with the 
issues before the Court deserve tribute. I 
refer to these divergences only to 
illustrate the difficulties which the Court 
and the parties encounter if they seek to 
contrast too minutely the detailed ways 
in which confidentiality and the right to 
a fair trial are protected in the Member 
States; ways which are determined by the 
factors to which I have referred. This 
however is in no way fatal to the 
existence of some right of protection for 
legal documents. It merely emphasizes, 
to use Mr Advocate General Warner's 
phrase, that one must go to the heart of 
the matter. 
The Court has been provided with 
extracts from legislation, case decisions 
and the opinions of academic authors 
and a welter of case references. Rather 
than set these out in extenso, I propose 
to summarize what seem to me to be the 
relevant features for present purposes, 
fully conscious of the risks that a 
summary may oversimplify and is 
incomplete. I deal first with the general 
position as to the protection of legal 
confidence and then consider the 
position in relation to competition law. 
In Belgium, it seems that confidential 
communications between lawyer and 
client are protected and cannot be seised 
or used as evidence. Although the basis 
of the rule may have been that infor­
mation confided to the lawyer must be 
protected, it seems from the opinion of 
Monsieur l'Auditeur Huberlani and the 
decision of the Conseil d'État of 8 June 
1961 (JT 1962, p. 171), that it also 
covers confidential advice given to the 
client. There exists also a more general 
principle which protects the privacy of 
correspondence — see Articles 10 and 22 
of the Constitution. 
In Denmark, the rule of the professional 
secret prevents lawyers from giving 
evidence of confidential information 
confided to them in their professional 
1651
OPINION OF SIR GORDON SLYNN — CASE 155/79 
capacity and a lawyer can refuse to 
produce documents covered by pro­
fessional secrecy. Communications 
between an accused person and his 
lawyer are protected in the hands of the 
accused under Article 786 of the Code of 
Procedure. This rule seems to apply also 
in civil proceedings. 
In Germany, confidential communi­
cations to a lawyer are protected in his 
hands, and breach of the professional 
confidentiality by a lawyer is a criminal 
offence. Thus such documents in the 
hands of the lawyer cannot be seised 
(Article 97 of the Code of Criminal 
Procedure). Documents in the hands of 
the client can, it appears, be seised unless 
they come into existence after the 
commencement of criminal proceedings 
(decision of the Bundesgerichtshof of 13 
August 1973, NJW 1973, p. 2035). 
In France, breach of the rule of pro­
fessional secrecy is a criminal offence, 
and, although it seems that documents 
may be seised in some circumstances 
even in the hands of the lawyer, the 
importance of the rule is stressed in 
Lemaire Les règles de L· profession de 
l'avocat which has been provided for the 
Court. This rule appears to be closely 
linked with the right to a fair trial (les 
droits de la défense). 
The principle of the "droits de la 
défense" appears to cover confidential 
documents passing in both directions 
between lawyer and client (see for 
example the decision of the Cour 
d'Appel de Paris of 13 November 1979, 
Gazette du Palais, 1980 Nos 90 to 92) 
and includes protection from seizure of 
legal advice given to the client before 
commencement of proceedings and 
found in his possession or in the 
possession of a person associated with 
him (Tribunal correctionnel de Nanterre, 
Décision of 18 December 1980, Gazette 
du Palais, 1981, p. 68 — a decision, it 
should be stated, which is under appeal). 
There is also it seems a wider protection 
for confidential letters than exists under 
the common law systems. 
In view of the attention which has been 
paid in particular to the law of France 
during the argument, it is of interest to 
observe that what I have summarized 
above is put, perhaps even more strongly, 
in para. 357 of Droit Européen de la 
Concurrence (Plaisant, Franceschelli, 
Lassier) : 
"Sans aucun doute, l'application de la loi 
française, par exemple, aurait pour effet 
de rendre inaccessible le dossier détenu 
par un avocat régulièrement inscrit à un 
barreau, en raison de ses règles 
déontologiques et notamment par le 
respect du secret professionnel prévu par 
l'article 378 du Code pénal. De mėme, 
les documents adressés par un avocat à 
ses clients demeurent couverts par le 
secret professionnel, surtout si la corres­
pondance lui est adressée de manière 
confidentielle." 
In Greece it seems that confidential 
communications in the hands of lawyers 
are protected in investigative proceedings 
instituted by judicial or administrative 
authorities. Documents in the hands of 
the client are covered by the general 
1652
AM & S v COMMISSION 
principle of privacy defined in Article 9 
of the Constitution. The power to search 
the client's premises is circumscribed by 
Articles 253 et seq. of the Code of 
Criminal Procedure. 
In Ireland and the United Kingdom, 
although there may be differences in 
detail, broadly the law of the two 
Member States is the same and it is set 
out more fully in the opinion of Mr 
Advocate General Warner. It should be 
repeated, however, that it covers both 
(a) communications between a person 
and his lawyer for the purpose of 
obtaining or giving legal advice whether 
or not in connection with pending or 
contemplated legal proceedings and 
(b) communications between a person 
and his lawyer and other persons for the 
dominant purpose of preparing for 
pending or contemplated legal 
proceedings. 
In Italy, as in most of the Member 
States, the law forbids lawyers from 
giving evidence of the information 
confided in them by their clients and 
entitles them to withhold documents 
covered by the doctrine of professional 
secrecy. On the other hand, it seems 
that, in the case of criminal 
investigations, documents held by a 
lawyer may be seised unless they have 
been entrusted to him for the preparation 
of his client's defence. Protection is 
wider in civil proceedings but it does not, 
in any case, appear to extend to 
documents in the hands of the client. It 
seems that, in the case of lawyers, pro­
fessional secrecy is a reflection of the 
right to a fair trial guaranteed by Article 
24 of the Constitution (see de Leone, 
"Il segreto professionale: limiti e 
guaranzie", Rivista Italiana di Diritto e 
Procedura Penale, 1978, p. 675). 
In Luxembourg, rules of professional 
secrecy and "les droits de la défense", it 
would seem, protect legal confidences in 
the hands of the lawyer, and of the client 
after proceedings have begun, but little 
case law has been produced showing the 
application of these rules in practice. 
Dutch law forbids the revelation of 
confidences by persons exercising a 
profession, such as lawyers. Coupled 
with this there is a right to refuse to give 
evidence on matters covered by pro­
fessional secrecy. These matters include 
not only the information revealed by the 
client but also, in the case of lawyers, the 
legal advice they have given (see, for 
example, the decisions of the 
Gerechtshof of the Province of Drenthe, 
17 November 1969, W., p. 3161, and the 
Arrondissementsrechtbank of Rotterdam, 
18 October 1954, NJ 1955 No 368). 
Article 98 of the Code of Criminal 
Procedure provides that, when the 
premises of someone bound by pro­
fessional secrecy are searched, the 
doctrine of professional secrecy must be 
observed and documents covered by it 
cannot be seised. There appears to be no 
authority holding or denying that legal 
correspondence found in the hands of 
the client is protected. 
This summary is substantially if not 
entirely, accepted by the Commission, 
the applicants and the body representing 
1653
OPINION OF SIR GORDON SLYNN — CASE 155/79 
the Bars of all the Member States as 
being a fair and acceptable statement of 
the laws of the Member States. 
It seems to me significant that they were 
able to reach agreement as to the 
existence of the principles which are set 
out in the document which they prepared 
to read to the Court. 
From this it is plain, as indeed seems 
inevitable, that the position in all the 
Member States is not identical. It is to 
my mind equally plain that there exists in 
all the Member States a recognition that 
the public interest and the proper 
administration of justice demand as a 
general rule that a client should be able 
to speak freely, frankly and fully to his 
lawyer. As it is put in Les règles de la 
profession de l'avocat: 
"Il faut que le client 'puisse avoir, en son 
avocat, une confiance sans limite', qu'il 
puisse 'négliger avec lui les précautions 
qu'on; prend dans les affaires ordi­
naires'; qu'il ne craigne pas 'd'ouvrir son 
âme tout entière à son défenseur et 
s'abandonner à sa foi'." 
Whether it is described as the right of 
the client or the duty of the lawyer, this 
principle has nothing to do with the 
protection or privilege of the lawyer. It 
springs essentially from the basic need of 
a man in a civilized society to be able to 
turn to his lawyer for advice and help, 
and if proceedings begin, for represen­
tation; it springs no less from the 
advantages to a society which evolves 
complex law reaching into all the 
business affairs of persons, real and legal, 
that they should be able to know what 
they can do under the law, what is 
forbidden, where they must tread 
circumspectly, where they run risks. 
The fact that this principle of 
confidentiality between lawyer and client 
may be given effect to in different ways, 
and that it is not coextensive in its 
application at any point in time, in all the 
Member States, does not mean that the 
principle does not exist. In my opinion it 
should be declared to be a rule of 
Community law. The way in which and 
the extent to which it applies in 
Community law and in relation to 
Community transactions and procedures 
needs to be worked out to achieve the 
best and most appropriate solution in the 
light not only of considerations of the 
practices of the various Member States, 
but the interests of the Community and 
its institutions, Member States and 
individuals which are subject to its laws. 
It is universally accepted that 
confidential documents of the kind to 
which I have referred in the hands of the 
lawyer are protected. If one considers 
the real purpose of the protection and 
gets away from labels and procedures, 
like legal professional privilege and 
"secret professionnel" which may not 
give the whole picture, I can for my part 
see no justifiable distinction between 
such documents in the hands of the 
lawyer and in the hands or the client. If 
the lawyer has one copy and the client 
another, both should be protected. The 
request and the reply, if relating to legal 
advice, are of the same nature. To tell 
1654
AM & S v COMMISSION 
the client that if he leaves his documents 
at his lawyer's office they will be 
protected, but that, if he keeps them 
himself, they are not seems to me 
indefensible and likely to encourage, e.g. 
the giving of oral advice if it is un­
favourable advice, and the destruction or 
transfer to the lawyer's office of 
documents. It would be quite extra­
ordinary that if the lawyer's documents 
were, by chance, left at the. client's 
premises, the day the inspector called, 
they must be produced, but that if the 
lawyer took his file away with him, they 
would not. In my opinion the rule covers 
communications between lawyer and 
client made for the purpose of obtaining 
or giving legal advice in whoever's hands 
they are and whether legal proceedings 
have begun or not. It covers also the 
contents of that advice (given orally or in 
writing), in whatever form it is recorded 
— whether in a letter or in a summary or 
in a note or in minutes. 
The position of the lawyer who is 
employed as such by an undertaking has 
been much canvassed. As I understand 
it in some Member States full-time 
employment is incompatible with the full 
professional status of a lawyer 
(apparently in Belgium, France, Italy and 
Luxembourg): in others the employed 
lawyer remains subject to professional 
discipline and ethics. Where the lawyer 
who is employed remains a member of 
the profession and subject to its 
discipline and ethics, in my opinion he is 
to be treated for present purposes in the 
same way as lawyers in private practice, 
so long as he is acting as a lawyer. Cases 
can arise where the lawyer exercises 
other functions (such as in England those 
of a company secretary) and of course, 
any communication in such other 
capacity would not be covered. A lawyer 
in private practice who is a member or 
associate of a large firm may act for long 
periods for only one client. If his 
communications are protected, so it 
seems to me, should be those of the 
lawyer who is a member of the legal 
department of a company. I would reject 
any suggestion that lawyers (pro­
fessionally qualified and subject to pro­
fessional discipline) who are employed 
full time by the Community institutions, 
by government departments, or in the 
legal departments of private under­
takings, are not to be regarded as having 
such professional independence as to 
prevent them from being within the rule. 
Accordingly I consider that counsel for 
the Commission is right to accept that, 
provided he is subject to rules of pro­
fessional discipline and ethics, the 
salaried lawyer should for present 
purposes be treated in the same way as 
the lawyer in private practice. The same 
position, it seems to me, ought to apply-
to confidential communications between 
a lawyer qualified in one jurisdiction and 
a lawyer qualified in a different 
jurisdiction about the affairs of their 
mutual or respective clients. 
The proper administration of the law 
and the rights of the individual are not 
of course the only aspects of the public 
interest. These may have to be balanced 
against other aspects of the public 
interest with which they may, or may 
appear to, conflict. A legislature may 
1655
OPINION OF SIR GORDON SLYNN — CASE 155/79 
decide that one of these which would 
otherwise apply, should be cut down or 
removed in areas where other aspects of 
the public interest should prevail. The 
elimination of restrictive practices, or 
fetters on free competition, is such an 
interest and, obviously, at the present 
time an important one. Can it be said 
that there is a rule widely accepted in the 
Member States that the protectior of 
legal confidence should yield to the 
powers needed to investigate alleged 
infringement of competition law? 
I am not aware of any provision of 
national law which expressly excludes all 
right of legal confidence from 
competition inquiries or proceedings. 
As I understand it, the Belgian law of 27 
May 1960 makes no mention of "le 
secret professionnel". Nor, however, 
does the statute dealing with criminal 
investigations. Silence does not remove 
the right of professional secrecy in the 
latter context, so that it may be doubted 
whether it does in the former, although 
there is, semble, no decided case on the 
subject. 
In Denmark the relevant legislation gives 
no right to seise documents and a court 
order must first be sought in order to 
obtain their disclosure. So far this has 
not apparently been necessari, because 
the persons investigated have complied 
with requests to produce documents. 
However, since confidentiality in Danish 
law does not apparently extend to 
documents in the hands of the client, the 
limiting or overriding of a principle of 
confidentiality does not seem to arise. 
According to a letter from the Bund­
eskartellamt submitted at the hearing, 
searches and seizures made in the 
context of "administrative fines" pro­
ceedings pursuant to the Gesetz gegen 
Wettbewerbsbeschränkungen (GWB) in 
Germany are expressly subject to the 
rules set out in the Code of Criminal 
Procedure. As a result, confidentiality, in 
so far as it is respected in German law, is 
upheld and documents found in the 
hands of the client may not be seised if 
they came into existence after the 
commencement of proceedings. On the 
other hand, investigations under Articles 
46 and 51 et seq. of the GWB, which are 
similar to proceedings under Article 14 
of Regulation No 17, are not subject to 
any express limitations. It is nevertheless 
accepted by the Bundeskartellamt and by 
commentators that confidentiality is 
protected to the same extent and 
documents may not in any event be 
seised without an order of a judge. 
In France it seems to be accepted that 
the silence of the law (i.e. Article 15 of 
Ordonnance No 45/1484) does override 
professional secrecy (see the decision of 
the Conseil d'État in the Appraillė case. 
Recueil des Arrets du Conseil d'État 1952, 
p. 512) unless the correspondence in 
question is "liée d'une defense". The 
liberal interpretation given to this 
expression by the Tribunal Correctionnel 
de Nanterre in its decision of 18 
December 1980, if upheld on appeal, 
would bring the position in France 
broadlv into line with that in Germany 
1656
AM í; S v COMMISSION 
and, it seems, Belgium. This decision has 
been criticized, however. 
Articles 25 and 26 of the Greek Law No 
703/1977, which empower the Service 
for the Protection of Competition to 
obtain any necessary' information and to 
search premises, expressly preserve 
confidentiality, referring to Anicie 9 of 
the Constitution and Articles 212 and 
253 et seq. of the Code of Criminal 
Procedure. 
Paragraph 7 (2) of the First Schedule to 
the Restrictive Practices Acts of Ireland 
expressly subjects the powers of the 
Restrictive Practices Commission, to 
examine witnesses on oath and require 
them to produce documents, to the 
doctrine of legal professional privilege. 
The examiner of restrictive practices has 
extensive powers similar to those in 
Article 14 of Regulation No 17 but 
Section 15 of the Restrictive Practices 
Act allows a person under investigation 
to apply to a court for a declaration that 
the exercise of the examiner's powers are 
not warranted by "the exigencies of the 
common good". The Irish concept of 
legal professional privilege, like the 
English, is justified as being in the public 
interest (and may therefore be held to be 
for the common good) but the 
Restrictive Practices Act seems to require 
the Irish courts to assess the public 
interest for and against the exercise of 
the examiner's powers. 
There is it seems no relevant legislation 
in Italy so the situation does not arise. It 
appears, however, that in the case of 
investigations in the context of 
administrative proceedings, where 
legislation often does not contain 
detailed provisions relating to powers of 
inspection, it has been speculated that 
the rules relating to criminal and civil 
investigations (which do preserve 
confidentiality) would apply, depending 
on the nature of the proceedings (see 
Giannini Diritto Amministrativo, Volume 
II, 1970, page 970 et seq.). This view 
again is challenged. 
Article 5 of the Law of 17 June 1970 of 
Luxembourg gives the Commission des 
Pratiques Commerciales Restrictives 
wide powers of investigation. Under 
Article 6 it may also request the Ministre 
de l'Économie Nationale to undertake 
an enquiry, the Minister designating the 
officials responsible for the investigation. 
Their powers are defined by reference to 
Article 8 of the law of 30 June 1961, 
which concerns price controls. That 
article gives the Office des Prix "Le droit 
d'investigation le plus large". Neither 
Article 5 of the law of 17 June 1970 nor 
Article 8 of the law of 30 June 1961 
contains any express limitations on the 
powers of investigation given by them 
and there is, it seems, no relevant case 
law as to whether any rule of legal 
confidence would apply in competition 
matters. It is however relevant to 
observe, as I understand it, that the 
Commission des Pratiques Commerciales 
Restrictives is purely a fact-finding body 
with no decision-making power (Anicie 
3 of the law of 17 June). Its function is 
to carry out investigations at the request 
of the Minister and to draw up a report 
(which may contain the dissenting 
opinions of the members of the 
Commission). Enforcement of the law is 
a matter for the Minister and, from his 
decisions, an appeal lies to the Conseil 
d'État. The Minister cannot directly 
1657
OPINION OF SIR GORDON SLYNN — CASE 155/79 
impose a fine; at most he can prohibit a 
panicu lar practice and penal sanctions 
may be imposed if his decision is not 
complied with (Articles 7 and 8). As a 
result, the position in Luxembourg is 
different from that obtaining under 
Regulation No 17. The Commission is 
both investigator and judge and can 
impose fines. 
In the Netherlands, Article 25 of the Wet 
Economische Delicten provides that, 
unless stated otherwise, economic 
offences are subject to the rules in the 
Code of Criminal Procedure (which, as 
has been seen, appears to uphold 
confidentiality). Article 19 of the Wet 
deals with powers of inspection but 
expressly preserves confidentiality. 
Anicie 18 of the Wet Economische 
Mededinging is to the same effect. 
Legislation in the United Kingdom 
expressly preserves confidentiality (see 
Section 85 of the Fair Trading Act 1973, 
Section 37 of the Restrictive Practices 
Act 1976 and Section 3 of the 
Competition Act 1980). It seems likely 
that, in England, an express provision 
would be required in order to restrict or 
override legal professional privilege. 
It thus seems clear that there is no 
universal, or even widely accepted, rule 
that such protection of legal confidence 
as exists is excluded in competition 
matters. At most, there is doubt in some 
cases; the general rule is that the 
protection continues. 
On behalf of the French Government it 
has been said that Anicie 14 of Regu­
lation No 17, properly construed, gives 
the Commission powers of investigation 
that are completely unlimited, and 
unfettered by any principle of 
confidentiality. 
It is said that silence regarding the 
principle of confidentiality indicates thai 
it is overridden entirely. Reliance has 
been placed on the legislative history of 
Regulation No 17 to show that the 
Council considered the question of 
limiting the Commission's powers in this 
way and then rejected it. While enter­
taining doubts as to whether it is 
permissible to interpret a regulation by 
reference to its legislative history·, Mr 
Advocate General Warner took the view 
that the Council had not deliberately 
decided against the application of any 
principle of confidentiality. At the second 
hearing, his conclusion was attacked by 
counsel for the French Government and 
the Commission. 
Whilst I share those doubts, in view of 
the second hearing it is necessary to 
consider again whether the legislative 
history of Regulation No 17 in any event 
clearly expresses the intention of the 
draftsmen. The preamble states that the 
Commission must have the power to 
require production of the information 
and carry out the investigations 
necessary to bring to light the restrictive 
practices prohibited by the Treaty. The 
regulation contains four provisions 
giving effect to this, Anieles 11 to 14. As 
1658
AM & S v COMMISSION 
can be seen from a comparison of the 
original draft, the amendments proposed 
by the Parliament's Internal Market 
Committee (both to be found in the 
"Deringer Report", European Par­
liament Document 57/1961), the Par­
liament's amendments (JO 73 of 15. 11. 
1961, p. 1409) and the final version, 
extensive changes were made to what is 
now Article 11 but, apart from a 
redrafting of Anicie 14 (6), only minor 
textual amendments were made to 
Anieles 14 (2), (3) and (5). 
As far as these anieles were concerned, 
the Committee raised several points 
concerning the general principle 
observed by States founded on the rule 
of law. In this context, it said this: "toute 
personne tenue de fournir des 
renseignements doit avoir le droit de 
refuser le témoignage tout comme le 
secret professionnel, par exemple des 
avocats et des expens-comptables, doit 
être garantie. En cas de perquisition, il 
faut prévoir l'intervention du tribunal du 
fait que d'après la loi fondamentale 
allemande, par exemple, des perquisitions 
ne peuvent étre faites que sur mandat du 
juge. La possibilité pour l'intéressé 
d'introduire un recours devant la Cour 
de justice contre la décision de la 
Commission ne remplace pas le mandat 
de perquisition du juge, car le 
renversement de la charge de la demande 
restreint d'une façon inadmissible la 
défense de l'intéressé" (paragraph 121). 
The only proposed change, however, 
was to the draft Article 11, to which the 
following paragraph was added: 
"Sont tenus de fournir les 
renseignements demandés les propri­
étaires d'une entreprise ou leurs represe­
ntants et, dans le cas de personnes 
morales, de sociétés ou d'associations 
n'ayant pas la personnalité juridique, les 
personnes chargées de les représenter 
selon la loi ou les statuts. Les personnes 
tenues de fournir les renseignements 
peuvent refuser de répondre aux 
questions lorsque ladite réponse risque 
de les exposer elles-mêmes ou d'exposer 
une des personnes pouvant refuser de 
témoigner en venu du code national de 
procédure, ou les entreprises ou les 
associations d'entreprises qu'ils (sic) 
représentent, à des sanctions pénales." 
When Regulation No 17 was adopted, 
the second sentence was omitted. It is 
quite clear that this sentence corresponds 
to no known doctrine of professional 
secrecy in any of the Member States. Its 
closest resemblance is to the rule, 
recognized in German law (and also 
English law for that matter), that a 
person may refuse to answer incrimi­
nating questions. Paragraph 121 of the 
Deringer Repon shows the close 
attention being paid to German law. 
Not all the repon's recommendations 
were proposed as amendments to the 
draft and it is possible that the wish that 
professional secrecy be protected had the 
same fate as the suggestion that searches 
should be subiect to the issue of a 
judicial warrant. Nevertheless, if the 
Parliament's proposed amendment to 
Anicie 11 could be construed as a 
reference to professional secrecy, the 
question arises. why no similar 
amendment was proposed in relation to 
Anicie 14? There is no clear answer. 
Such information as to the legislative 
histon' as is available is tar from giving a 
clear indication of the intentions of the 
draftsmen. The most that 1 think can be 
said is that a limitation on the 
1659
OPINION OF SIR GORDON SLYNN — CASE 155/79 
Commission's powers of investigation 
relevant to this case occurred to the Par­
liament's Internal Market Committee but 
that it proposed no amendment to give 
effect to such a limitation. There is no 
indication that either the Commission or 
the Council thought of it or, if they did, 
what they thought. The legislative 
history does not, therefore, in my view, 
offer any useful guidance to the interpret­
ation of Article 14. 
It is impossible to accept the argument 
put forward that disclosure of documents 
to an authorized official pursuant to 
Article 14 does not in any way breach 
the confidence widely protected in 
Member States, as has been shown from 
the summary already given. Nor do I 
accept the argument that proceedings 
under Article 14 are purely admin­
istrative and fact-finding so that the rule 
cannot apply in any event. There is no 
clear cut division in the procedure under 
Regulation No 17 between a fact finding 
and a quasi-judicial stage in the 
investigation. The same Directorate-
General is involved throughout. I refer in 
any event to what was said by the Court 
in Case 85/76 Hoffmann-La Roche v 
Commission (1979) ECR 461 at para. 9, 
"Observance of the (right to a fair trial) 
is in all proceedings in which sanctions, 
in particular fines or penalty payments, 
mav be imposed, a fundamental principle 
of Community law which must be 
respected even if the proceedings in 
question are administrative proceedings". 
In my opinion, therefore, the rule of 
protection is not excluded by the nature 
of the process. 
In his paper on methods of interpretation 
in 1976, Judge Kutscher said that a 
measure adopted by a Community 
institution "... is to be interpreted — if 
at all possible — so that it is compatible 
with the superior law of the Treaties and 
the general principles of law which, too, 
are attributed a status superior to that of 
subordinate law. Other interpretations 
which would lead to incompatibility with 
the superior law, and thus to the inap­
plicability or to the invalidity of the 
measure adopted by the institution, are 
to be disregarded" (page 38). 
I am fully alive to the importance of 
enforcing Articles 83 and 86 of the 
Treaty, to the need to obtain all infor­
mation as to what has been done by 
those concerned and to the difficulties of 
obtaining evidence to establish the truth. 
None the less on its proper construction, 
Article 14 does not, in my opinion, 
empower the Commission to examine 
documents covered by the general 
principle of confidentiality as I consider 
that it is to be found in Community law. 
I am accordingly of the opinion that the 
view taken by the Commission that as a 
matter of law it cannot be said that there 
is no rule for the protection of legal 
confidence in Community law, was 
correct. That rule, however, is wider, as 
I have described earlier, and, in my view, 
more logical than the limited rule 
proposed by the Commission. It is a 
general rule of Community law to be 
derived from a consideration of the 
general principle applied, albeit in 
different ways, in the Member States. It 
does not depend on an administrative 
concession, nor is it derived from any 
1660
AM & S v COMMISSION 
concept of estoppel flowing from an 
answer given to a parliamentary 
question, and which, in theory at any 
rate, it might one day be said could be 
abrogated for the future. It is not 
excluded in the area of competition 
investigations: nor does Article 14 
prevent it from applying. 
It follows that in my opinion the views 
expressed by Dr Ehlermann and Dr 
Oldekop (which are set out in Mr 
Advocate General Warner's opinion at 
page 1623 and to which, albeit they were 
writing in a personal capacity, I would 
attach considerable weight) were sub­
stantially correct. Those views in essence 
are shared by J. Sedemund "Due process 
in Community law" and in other articles 
to which the Court has been referred. 
One particular problem in this case 
relates to the documents prepared by or 
for members of the Rio Tinto Zinc 
Group other than the applicants. As the 
Court indicated in Case 48/69 ICI v 
Commission [1972] ECR 619 at p. 662, 
the reality of the relationship between 
the members of a group of companies 
forming one economic unit may mean 
that their separate legal personality has 
to be treated as a formal rather than a 
substantial distinction, particularly in the 
field of competition. Moreover, legal 
advice prepared by either lawyers 
employed or those in private practice 
retained by one member of the group 
may in fact be requested on behalf of all 
the members of the group. This is 
certainly the case where exists, as here, 
one member of the group whose 
function it is to supply legal advice to the 
group as a whole. In this situation it 
seems right that the common interest of 
all the members of the group should be 
regarded as justifying the retention of 
confidentiality in respect of documents 
drawn up by or for one member of the 
group and found in the possession of 
another. 
Some of the documents, e.g. Document 
No 13, contain matter not falling within 
the categories of (a) communications 
between lawyer and client (or lawyer and 
lawyer) and of (b) records of such 
communications to which I have 
referred. Those parts must be produced. 
There is not in practice any real 
difficulty in covering up the parts which 
are protected. This apart, I consider that 
all the documents which remain in issue 
are protected from production to the 
Commission. 
Although the procedural question ceased 
to be the priman' question, it remained 
an important part of the Commission's 
case that (a) whether documents are 
protected cannot depend on the ipse dixit 
of the undertaking and (b) that in the 
present state of Community law the 
inspector himself must decide the 
question, subject to his right to consult 
with his colleagues in general terms, if he 
is in doubt. I agree with the first pan of 
the contention. I find the second wholly 
unacceptable. It seems to me that in a 
number of Member States the decision as 
to whether a document is protected is 
not left to be decided by the enforcing 
and investigating authority, and such a 
course would be unacceptable. I do not 
repeat the views expressed by Mr 
Advocate General Warner on this aspect 
of the matter but I adopt them. I agree 
1661
OPINION OF SIR GORDON SLYNN — CASE 155/79 
with him that an independent tribunal 
must decide the question. It is too 
simplistic a view to say that the inspector 
can put out of his mind, wholly, any 
protected material which he may read in 
the course of making his decision. Judges 
sometimes have to do it, but their 
training is different and even for them it 
is not always an easy task. The English 
position has been overstated in the 
arguments on behalf of the French 
Government since not infrequently a 
decision as to whether documents are 
protected is taken as a separate process 
and by a different judge from the trial 
judge. Moreover in this area it seems to 
me that it is important to have regard to 
the sense of injustice which may be felt 
by those who are subject to investigation. 
The enterprise concerned will no doubt 
often be left uncertain as to whether the 
inspector really has put the matter aside 
or whether consciously or not he has 
gone on to ask questions or pursue 
enquiries which can only have been 
derived from protected information. This 
is in no sense a reflection on the good 
faith or intention of the inspector. It 
derives simply from the difficulty of 
knowing whether he has been influenced 
unconsciously by what he has read and 
which ex hypothesi he should not have 
seen. 
In this context I find the answer to 
Mr Cousté unsatisfactory — the 
Commission's undertaking is only not to 
use the document. It seems to me that if 
the protection has come into existence 
the Commission should not see the 
document. The public interest which 
gives rise to the principle of 
confidentiality comes into existence at 
the moment when advice is required and 
given, and it continues thereafter 
irrespective of when the question of 
production for inspection arises. 
I cannot share the equanimity with 
which the Commission suggests that all 
can be put right in the end. It is said 
that, if protected information is used to 
lead to a decision that there has been an 
infringement, that decision may be set 
aside by the Court. Such an approach to 
my mind leaves out of account important 
considerations.. The protected infor­
mation (ex hypothesi wrongly used), may 
be the cornerstone of the Commission's 
case; it may appear at an early stage in 
the enquiry; the enquiry may be — and 
often is — lengthy, demanding great 
time and effort on the pan of the 
Commission's staff. The cost to the 
Community, and therefore eventually to 
the taxpayer, and to the private 
enterprise concerned, may be huge. It is 
to my mind more satisfactory, more fair 
and more efficient if this kind of point 
can be resolved at an earlier stage. 
Unless Community legislation establishes 
that it is not possible to resolve such 
issues at an earlier stage. I consider the 
arguments in favour of obtaining a 
ruling, before the documents are seen 
and used, to be overwhelming. It is in 
anv event wrong that such protected 
information should continue to be used 
if means of deciding whether it is 
protected are available. I do not consider 
that for such a ruling to be given at an 
early stage involves a conflict between 
the functions of the Commission and 
whatever is the appropriate judicial 
tribunal. The functions of the two in 
achieving the true aims of the Treaty and 
1662
AM & S v COMMISSION 
Community law are complementary and 
not conflicting. 
Mr Advocate General Warner has put 
forward a number of considerations in 
favour of the matter being resolved by 
national couru as a matter of 
Community law, although he rejects, as I 
would reject, the suggestion put forward 
that protection should depend on the 
national law of the Member State in 
which the documents are ' found. The 
course he has suggested is obviously one 
possible course, although some difficult)' 
may arise form the fact that in some 
jurisdictions it appears that it is the 
Bâtonnier, rather than a Court, who 
decides whether the documents are 
privileged. 
There seems to me an alternative course 
which I do not consider to be subject to 
all the disadvantages which have been 
attributed to it. It seems to me that once 
the question of principle has been 
decided by the Court, the issues in most 
future cases are likely to be short. In the 
majority of cases the parties are likely to 
be able to reach agreement as to whether 
a document in fact is within the 
principle, the undertaking's lawyer being 
able to satisfy the inspector as to the 
nature of the document, without 
disclosing the contents. If disputes arise, 
the Commission, if not satisfied, can take 
a decision which can be referred to the 
Court, as was done in this case, and 
perhaps be dealt with by a chamber. In 
the light of experience in comparable 
matters, I do not accept that the 
floodgates would be open as is 
contended. Nor should any weight be 
attached to the references made to delays 
and tactics which it is said occur in 
American proceedings. American lawyers 
are the first to point out that such delays 
do not form paa of the United Kingdom 
system. The Court has methods available 
to it to curb unmeritorious applications. 
Even if costs against the undertaking do 
not deter, few lawyers acting in this kind 
of work are likely to risk serious 
criticism by the Court in its judgment by 
bringing hopeless disputes as to the 
documents before it. 
Accordingly, it seems to me that the 
better course is that when a dispute does 
arise the matter should be referred to 
this Court as has been done in the 
present proceedings. 
It is, then, my opinion thai, subject to what I have said about pans of the 
documents in dispute, Anicie 1 (b) of the Commission's Decision of 6 July 
1979 should be declared void and the Commission should be ordered to pay 
the applicants' costs. There is no reason derived from the subsequent 
proceedings, in my view, to depart from Mr Advocate General Warner's 
recommendation that the Commission should also pay the costs of the 
successful interveners, the United Kingdom Government and the CCBE, and 
that the French Government should bear its own costs. 
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