AM & S v COMMISSION 
in Article 1 (b) of the contested decision and listed in the appendix to 
AM & S Europe Limited's letter of 26 March 1979 to the 
Commission. 
3. The Court will, before the date of the hearing, draw up a report on 
those documents in a form which it considers appropriate so as not to 
prejudice its final decision; this report will be notified to the parties. 
4. The applicant, the defendant and the interveners will, at the hearing, 
be heard on questions which will be particularized at a later date. 
Luxembourg, 4 February 1981. 
A. Van Houtte 
Registrar 
J. Menens de Wilmars 
President 
OPINION OF MR ADVOCATE GENERAL WARNER 
DELIVERED ON 20 JANUARY 1981 
Contents 
I. Introductory 1620 
II. The background 1620 
III. The facts of the case 1624 
IV. The issues in the case 1628 
V. The issue of principle 1630 
VI. The procedural issue 1637 
VII. Conclusions 1642 
1619
OPINION OF MR WARNER — CASE 155/79 
My Lords, 
I — Introductory 
In this action, which is brought against 
the Commission under Article 173 of the 
EEC Treaty, the applicant is an English 
company called AM & S Europe Limited. 
It is a subsidiary of an Australian 
company, Australian Mining and 
Smelting Limited. Both companies 
belong to the well-known Rio Tinto 
Zinc group. A subsidiary of the applicant 
owns and operates a zinc smelter at 
Avonmouth, near Bristol. 
On 10 February 1978, the Member of 
the Commission responsible for 
competition policy ordered investigations 
to be carried out under Article 14 of 
Regulation No 17 into a number of 
undertakings in the zinc industry, which 
were suspected of having jointly fixed 
prices and conditions of sale, controlled 
production and shared out markets, in 
breach of Article 85 of the Treat)'. The 
applicant was one of those undertakings. 
Article 14 of Regulation No 17 is so 
familiar to your Lordships that I do not 
think it necessary to read it. The Court 
was recently concerned with it in Case 
136/79 National Panasonic (UK) Ltd v 
Commission (26 June 1980, not yet 
reported). The questions at issue in this 
case are, however, different from those 
that were at issue there. 
The questions here at issue relate to the 
extent to which, and the manner in 
which, communications between a 
lawyer and his client may be protected 
from disclosure in an investigation under 
Article 14. Before I state the facts of the 
case and the precise nature of the 
questions to which they give rise, it may 
be helpful if I say something about the 
background. 
II — The background 
Article 20 of Regulation No 17, which is 
headed "Professional secrecy", imposes 
on the Commission and the competent 
authorities of the Member States, their 
officials and other sen-ants, an obligation 
not to disclose information acquired by 
them as a result of the application of the 
regulation and "of the kind covered by 
the obligation of professional secrecy". 
The reference there to "professional 
secrecy" is obviously a reference to the 
concept known in French law for 
instance as "le secret professionnel", 
which is a wide concept in the sense that 
it applies not only to lawyers but to 
anyone whose occupation leads him to 
be entrusted which confidential infor­
mation, e.g. members of the medical 
profession and government officials. 
It might be suggested, though no one did 
so in argument before us in this case, 
that the express reference in Anicie 20 to 
"professional secrecy" and the absence 
of any express reference to any such 
concept elsewhere in the regulation must 
be taken to mean that the authors of the 
regulation intended to exclude the 
application of any such concept 
otherwise than in the circumstances 
described in Article 20. That would 
however be, so it seems to me. a 
somewhat rash application of that 
unreliable maxim expressio unun esi 
exclusio alterius. 
The Commission and the French 
Government suggested on the other hand 
that the "legislative history" of Anicie 14 
showed that the Council, when rnactinp 
Regulation No 17, had deliberated 
rejected the idea that any concept ol 
"professional secrecy" should applv in 
the context of that aniele. They relied, in 
so doing, on the rejection by the Council 
of amendments urged by the European 
1620
AM & S v COMMISSION 
Parliament to the Commission's proposal 
for what became Regulation No 17. As 
your Lordships know, I entertain grave 
doubt whether it is permissible to 
interpret a Council Regulation by 
reference to its "legislative history". Be 
that as it may, I do not think that, in this 
instance, an examination of the 
"legislative history" of Article 14 leads 
to the conclusion suggested by the 
Commission and the French Govern­
ment. 
The Parliament's amendments had their 
origin in a repon made by its Internal 
Market Committee on the Commission's 
proposal (the "Deringer Report" — 
European Parliament Doc. 57/1961). In 
paragraph 121 of that report the 
committee voiced a number of criticisms 
of Articles 9 and 11 of the proposal, 
which became respectively Articles 11 
and 14 of the regulation. Article 11 
of the regulation, your Lordships 
remember, empowers the Commission to 
request and, where necessary, to require 
information from, among others, 
"undertakings and associations of under­
takings". Most of the committee's 
criticisms had nothing to do with the 
present problem. Paragraph 121 
contained however a sentence in these 
terms : 
"En tout cas, 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 experts-
comptables, doit être garanti." 
When one turns to the amendments 
proposed by the committee (at pp. 44 to 
46 of its report) one finds that in fact it 
proposed none to what is now Article 14. 
It proposed a series of amendments to 
what is now Article 11 designed to give 
effect to the criticisms it had expressed in 
paragraph 121, and in particular to the 
view that owners or representatives of 
undertakings called upon to supply 
information should not be required to 
answer incriminating questions. There 
was no mention in the proposed 
amendments of "le secret professionnel". 
The formal opinion of the Parliament, 
embodied in a resolution dated 
19 October 1961, did not differ in any 
material respect from what had been 
proposed by the committee. 
It seems that, of the laws of the original 
Member States, only German law 
recognizes the general principle that a 
person may refuse to answer incrimi­
nating questions. That principle is of 
course recognized in English law also. It 
is however distinct from the principle 
that safeguards the confidentiality of 
communications between a lawyer and 
his client. One can understand that the 
Council should have wished to exclude 
from what is now Article 11 of the Regu­
lation a rule that a person should not 
be required to answer incriminating 
questions, for that might have defeated 
the very purpose of the Article or at least 
rendered it largely ineffective. But one 
cannot, in my opinion, draw from the 
fact that the Council rejected the Par­
liament's suggestion in that respect the 
conclusion that the Council deliberately 
decided against the application of any 
principle protecting the confidentiality of 
communications between lawyer and 
client in the context either of Article 11 
or of Article 14. 
Regulation No 17 was adopted by the 
Council on 6 February 1962. We were 
told by the Commission that the absence 
from Article 14 of any reference to 
communications between lawyer and 
client did not seem to have given rise to 
1621
OPINION OF MR EARNER — CASE 155/79 
any difficulty in the early years of its 
application. The Commission did not, 
however, enlarge upon that, so that we 
do not know how often Article 14 was 
invoked in those years, nor to what 
extent cases then occurred in which 
Commission officials carrying out 
investigations came across communi­
cations of the kind in question. The 
Commission went on to tell us that, after 
the accession of the new Member States, 
the subject was raised more frequently in 
discussion in professional circles and 
short articles were published on it. 
In 1976 the Consultative Committee of 
the Bars and Law Societies of the 
European Community (the "CCBE") 
published a report by Mr D. A. O. 
Edward, QC, of the Scottish Bar, 
entitled "The Professional Secret, 
Confidentiality and Legal Professional 
Privilege in the Nine Member States of 
the European Community" (the 
"Edward Report"). Mr Edward, who 
was subsequently President of the 
CCBE, represented that body in the 
present proceedings before us. In the 
preparation of his repon he was advised 
and assisted by distinguished members of 
the Bars of all the countries of the 
Community. 
The title of the Edward Report is 
significant. "The Professional Secret" is 
of course a literal translation into 
English of "le secret professionnel". 
"Confidentiality" is the name given to 
the relevant concept in Scottish law, 
whilst "Legal Professional Privilege" is 
the name given to it in English and Irish 
law — an inaccurate name as Lord 
Wilberforce pointed out in Waugh v 
British Railways Board [1980] AC 251, at 
p. 531. 
The Edward Report dealt with a host of 
problems of common interest to the Bars 
of the' Member States ranging far beyond 
the particular questions with which your 
Lordships are concerned in the present 
case. I do not propose to embark upon 
an analysis of it, or even to attempt a 
summary of it. Beyond saying that it 
was, and still is, a remarkable feat of 
comparative law, I will confine myself to 
one comment on it, which is this. 
The report rests on the premise that 
there is a fundamental difference 
between the laws of the original six 
Member States on the one hand and the 
laws of Ireland and of the United 
Kingdom on the other hand, whilst the 
law of Denmark should be considered 
separately. But — and this thought 
struck me when I first read the report in 
1976 — the report itself unconsciously 
demonstrates that that is a mistaken 
approach, first because of differences 
between the laws of "the original six" 
that the report brings out and secondly 
because of differences between the laws 
of England and of Scotland that the 
report overlooks. The report was 
however, in my opinion, right in 
concluding that the differences between 
the laws of the different countries the 
Community "are differences of apr... rh 
or method (made necessary by \r 
fundamentally different legal sys: s) 
rather than differences of result". T r. ¡s 
not to say, of course, that the re-ult is 
everywhere uniform. 
In 1977 two members of the Legal 
Service of the Commission, Dr C. D. 
Ehlermann, its Director-General, and Dr 
D. Oldekop, wrote a paper for the 
following year's Congress of the FIDE in 
Copenhagen. The views they expressed 
in that paper were of course their 
personal views. They could not com­
mit the Commission. Having regard, 
1622
AM & S v COMMISSION 
however, to the standing of Drs 
Ehlermann and Oldekop, and also to the 
fact that the relevant passage in their 
paper is comparatively short, I propose 
to cite it almost in full. They said this 
(FIDE, Copenhagen 1978, Vol. 3, pp. 
11.5-11.6): 
"The question whether and if so, to what 
extent, communications between a 
lawyer and his client are or should be 
protected under Community law against 
discovery by the Commission 
constitutes a question of due process that 
should be mentioned in the context of a 
discussion dealing with the rights of 
defence with regard to the investigation 
powers of the Commission. In all of the 
Member Sutes the secrecy of the 
relationship between a lawyer and his 
client enjoys legal protection against 
discovery by administrative authorities 
and even the judiciary, although within 
varying limits and by different methods. 
These limits and methods cannot be 
described in this paper." 
The authors refer the reader instead to 
the Edward Report, and go on: 
"In the area of Community law, the 
problem had been discussed during the 
deliberations of the European Parliament 
concerning the adoption of Regulation 
No 17/62; on the basis of the "Deringer 
Repon", the European Parliament made 
a recommendation in favour of the 
protection of professional privilege. 
However, this recommendation was not 
adopted by the Council." 
Your Lordships know that, in that 
respect, my interpretation of what 
happened differs from the authors', who 
continue: 
"After the enlargement of the Com­
munities the discussion has been revived 
on the background of the particularly 
extensive protection of professional 
privilege in the UK and Ireland (which 
extends not only to independent lawyers 
but also to lawyers who are full-time 
employees of the client). 
Community law contains no specific and 
express rules relating to the protection 
of legal professional privilege in 
administrative procedures Article 20 
Regulation No 17/62 prohibits only 
disclosure of secrets by the Commission, 
but not to the Commission." 
Then, after a reference to Article 32 (2) 
of the Rules of Procedure of this Court, 
the authors conclude: 
"Considering the legal situation in the 
Member States it seems justified to 
assume that there exists a general 
principle of law, applicable in 
Community law as part of 'the law' in 
the sense of Art. 164 EEC Treaty (Arts 
31 ECSC Treaty, 136 EAEC Treaty), 
which, within certain limits, assures the 
professional privilege, also in admin­
istrative proceedings. Until now, the 
protection of professional privilege has 
not proved to be a particularly sensitive 
issue in the practice of the Commission 
and the extent of the appropriate 
protection is open to discussion. It is 
clear, though, that this protection ends 
where the lawyer himself assists or parti­
cipates in illegal activities of his client. In 
the context of a future comprehensive 
and balanced solution of all the issues 
involved, there seems to be no reason to 
treat salaried lawyers employed by their 
client differently from independent 
lawyers in professional practice, provided 
that they are effectively subject to similar 
rules of professional ethics and 
discipline." 
On 22 June 1978 the Commission gave 
its official view in answer to a question 
put down by Mr Cousté in the Par­
liament (Written Question No 63/78). 
The Commission's answer to that 
question was as follows: 
1623
OPINION OF MR WARNER — CASE 155/79 
"Anicie 14 of Council Regulation No 
17/62 empowers the Commission to 
check and copy all correspondence and 
other business papers of a firm or 
association of firms, including papers 
prepared for it by outside lawyers and 
legal consultants. 
Community competition legislatior does 
not provide for any protection for lega! 
papers. But the Commission, wishing to 
act fairly, follows the rules in th-
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. 
Subject to review by the Court of Justice, 
it is for the Commission to determine the 
nature of a given paper. 
Lastly, the Commission would remind 
the Honourable Member that, by virtue 
of Article 20 of Regulation No 17/62 of 
the Council, Commission staff are bound 
by an obligation of professional secrecy 
in all matters relating to the enforcement 
of Articles 85 and 86 of the EEC 
Treaty." 
I turn back to the facts of this case. 
Ill — The facts of the case 
It seems that, at all events so far as the 
applicant was concerned, the original 
decision of the Member of the 
Commission responsible for competition 
policy to initiate an investigation was not 
a formal decision under paragraph 3 of 
Article 14, but one that led only to 
officials of the Commission being auth­
orized to carry out an investigation 
under paragraphs 1 and 2 of that Article. 
On 20 February 1979 three officials of 
the Commission (whom I will call "the 
inspectors") appeared at the applicant's 
premises at Bristol, accompanied by an 
official of the Office of Fair Trading, 
which is the "competent authority" in 
the United Kingdom for the purposes of 
Article 14. The inspectors were armed 
with "authorizations to investigate" 
issued under Article 14 (2). Those were 
served on the applicant's Managing 
Director, Mr A. T. Thomson, and the 
investigation proceeded on that and the 
following day, in the presence of two 
representatives of the applicant's 
solicitors. At the end of it the inspectors 
left taking with them copies of about 35 
documents. They also left with Mr 
Thomson a written request for further 
documents relating to certain specified 
matters. 
Mr Thomson responded to that request 
by a letter dated 26 March 1979, with 
which he sent to the Commission seven 
files of documents. He told the 
Commission however, in that letter, that 
the applicant's solicitors, during their 
review of the documents, had indicated 
that they felt that some of them were 
"covered by the doctrine of legal 
privilege". For that reason those docu­
ments were not produced. Descriptions 
of them were set out, in seventeen 
numbered paragraphs, in an appendix to 
the letter. 
From those descriptions it seems that the 
documents withheld fell broadly into 
four categories: 
1624
AM & S v COMMISSION 
(i) solicitors' instructions to counsel, 
(ii) communications between an outside 
solicitor and the applicant or one of 
its parent companies containing 
legal advice or requests for legal 
advice, 
(iii) documents containing legal advice 
or requests for legal advice from an 
"in-house" lawyer employed by the 
applicant or by one of ¡is parent 
companies and 
(iv) communications between executives 
of the applicant or one of its parent 
companies recording legal advice or 
requests for legal advice. 
Mr Thomson also said in his letter that 
the applicant's solicitors had indicated 
that certain passages of documents 
included in the files to be sent to the 
Commission were of no relevance to the 
investigation it was conducting. Those 
passages had been deleted and the 
solicitors would shortly be sending to the 
Commission a statutory declaration 
describing the deleted passages so that it 
might be "satisfied" on that point. 
Mr Thonson suggested that, should the 
Commission "need further confirmation 
regarding the privileged documents or 
the deleted passages", it should contact 
the applicant's solicitors to discuss the 
matter. 
On 5 April 1979 the solicitors wrote to 
the Commission enclosing the promised 
statutory declaration. 
The Commission did not follow up Mr 
Thomson's suggestion of discussions 
with the applicant's solicitors. Without, 
so it seems, any further communication 
with the applicant or its solicitors, it 
adopted, on 6 July 1979, a Decision 
under Article 14 (3) addressed to the 
applicant (No 79/670/EEC). 
The preamble to that Decision, after 
reciting the facts, continued as follows as 
regards the documents for which "legal 
privilege" was claimed: 
"Community competition legislation 
does not provide for any protection for 
legal papers. However, as the 
Commission made clear in its reply to 
Written Question No 63/78 in the 
European Parliament, asked by Mr 
Cousté, the Commission 'follows the 
rules in the competition law of certain 
Member States and is willing not to use 
as evidence of infringements of 
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'. 
Clearly neither the undertaking 
concerned nor its legal advisers can be 
the ultimate or only arbiter either as to 
questions of fact or of law, as to whether 
any given document is one of these kinds 
of documents and was written in 
circumstances which would justify its not 
being used. 
Under existing Community law, and 
subject to review by the Court of Justice, 
it is for the Commission to determine 
whether a given document should be 
used or not. Therefore it is necessary for 
1625
OPINION OF MR WARNER — CASE 155/79 
AM & S Europe Ltd to allow the 
Commission's inspector to look at the 
documents, and to ask questions in 
connection with them, as far as is 
necessary for the purpose of establishing 
whether they should be used or not. If 
the inspector considers that they should 
not be used, he will not take any copies 
and the documents will not be used sub­
sequently by the Commission as evidence 
of any infringement." 
The preamble then dealt with the 
applicant's claim to be allowed to delete 
from documents that were admittedly 
relevant to the investigation passages that 
its solicitors considered irrelevant. I need 
not read the recitals about that, because 
that claim was subsequently dropped by 
the applicant and is not an issue in the 
present action. 
Article 1 of the Decision required the 
applicant to submit to an ivestigation at 
its premises at Bristol and Avonmouth 
and in particular to produce for exam­
ination the business records required by 
the Commission officials responsible for 
the investigation "which are in whole or 
in part connected with the subject of the 
inquiry". The Article then set out in 
paragraphs lettered (a), (b) and (c) three 
categories of business records which 
were "in particular" to be produced. 
Paragraph (a) specified the documents 
that were the subject of the written 
request made to Mr Thomson on 
21 February and some others. Paragraph 
(b) specified "all documents for which 
legal privilege is claimed, as listed in the 
appendix to AM & S Europe Limited's 
letter of 26 March 1979 to the 
Commission". Paragraph (c) specified 
the complete texts of the documents 
from which passages had been deleted. 
Article 2 provided that the investigation 
should begin on or after 9 July 1979. 
On 25 July 1979 two of the 
Commission's inspectors who had carried 
out the earlier investigation in February 
attended at the applicant's premises at 
Bristol and served the Decision. They 
then carried out a further investigation 
at those premises, which lasted until 
27 July. 
During the investigation it was made 
clear on behalf of the applicant that it 
was willing to produce all the documents 
within Article 1 (a) of the Decision, with 
the exception of some for which "legal 
privilege" was claimed, and also to 
produce complete copies of the 
documents mentioned in Article 1 (c). 
The inspectors took copies of some 
documents and asked for copies of 
others. 
The applicant declined to show the 
inspectors the entirety of the documents 
referred to in Article 1 (b) of the 
Decision. Its solicitors told the inspectors 
that, in their view, Community law did 
not require the applicant to disclose to 
them the contents of those documents, 
but that they were willing to let the 
inspectors see parts of the documents in 
question so that they could satisfy 
themselves that they were indeed 
privileged. The inspectors indicated that 
they were unwilling to proceed on the 
basis of seeing pans only of the 
documents. The applicant's solicitors 
proposed that the matter be discussed at 
a meeting to be arranged between the 
applicant's legal advisers and represen­
tatives of the Commission in Brussels. 
The investigation was then halted as 
respects the documents for which 
privilege was claimed, pending such a 
meeting. 
1626
AM & S v COMMISSION 
On 2 August 1979 the applicant's 
solicitors wrote to the Commission 
enclosing copies of the remaining 
documents specified in Article 1 (a) but 
listing some thirteen which they were 
withholding on the ground that they too 
were covered by "legal privilege". All 
those documents except one were 
eventually disclosed to the Commission. 
The meeting was held at Brussels on 
18 September 1979 between officials of 
the Commission's Directorate-General of 
Competition (DG IV) and of its Legal 
Service, on the one hand, and the 
applicant's counsel and solicitors on the 
other. It was largely abortive. 
The applicant's counsel (Mr Jeremy 
Lever, QC), relying to some extent on 
the passage in the preamble to the 
Decision stating that it was necessary for 
the inspector "to look at the documents, 
and to ask questions in connection with 
them, as far as is necessary for the 
purpose of establishing whether they 
should be used or not", proposed a 
procedure under which enough of each 
document would be shown to the 
inspectors to satisfy them of its privileged 
status. He emphasized that, if the 
inspectors were allowed to see the whole 
of a document, its confidentiality would 
be lost, particularly as the Commission, 
whilst stating that it would not use as 
evidence a document that had been 
written with a view to seeking or giving 
legal advice, had never said that its 
inspectors were debarred from using 
knowledge acquired by them from the 
perusal of such a document. Mr Lever 
added that if, upon being shown what 
the applicant's advisers considered was 
enough of a document to enable "any 
reasonable inspector" to judge whether it 
was privileged, the inspector should still 
feel unsatisfied, there would be a clear 
issue for submission to this Court as to 
whether the applicant had adequately 
complied with the Decision. 
The Commission's representatives con­
sidered however that the Commission's 
Decision required the production of the 
whole of the withheld documents to the 
inspectors. They conceded that, in 
practice, the inspectors might well need 
to see only part of a document to 
determine that it should not be used as 
evidence by the Commission, but they 
considered it essential that the inspectors 
should have access to the entire 
document and that the inspectors alone 
should decide which parts of the 
document they would read in order to 
satisfy themselves that it should not be 
used. 
In the upshot, all that was agreed 
between the parties at the meeting was 
that the dispute between them would 
have to be brought before this Court by 
means of proceedings taken by the 
applicant under Article 173 of the Treaty 
to challenge the Commission's Decision; 
and that, if such proceedings were taken, 
the Commission would, until the Court 
had given judgment, refrain from 
imposing any fine or penalty on the 
applicant for failure to comply with the 
Decision. 
Accordingly, on 4 October 1979, the 
applicant commenced the present action, 
in which it claims a declaration that 
Article 1 (b) of the Decision is void or, 
alternatively, void "insofar as ¡t 
necessarily requires the disclosure to the 
Commission's inspector of the whole of 
each of the documents for which the 
applicants claim protection on grounds 
of legal confidence". 
1627
OPINION OF MR WARNER — CASE 155/79 
IV — The issues in the case 
The application was framed on the 
footing that there was no dispute 
between the parties as to the existence of 
a principle of Community law protecting 
communications between lawyer and 
client from disclosure, and that the issue 
between them was only as to procedure, 
the question being to what extent, if at 
all, the Commission was entitled to look 
at a document in order to determine 
whether a claim that it was privileged 
from disclosure in accordance with that 
principle was valid. 
From the outset the Commission seemed 
to endorse that view of the case. It began 
by asking for an extension of time for 
lodging its defence while the applicant 
considered a letter that it (the 
Commission) wrote to the applicant's 
solicitors on 31 October 1979. In that 
letter the Commission said this: 
"On reconsideration, the services of the 
Commission consider that the proposal 
put forward on behalf of AM & S at the 
meeting on 18 September 1979 and the 
practice thought appropriate by the 
Commission may not be as different as 
had previously appeared to be the case. 
Accordingly this letter is written to 
suggest that the documents now in 
question should be shown to the rep­
resentative of DG IV on a basis similar 
to that outlined by Mr Lever. This is of 
course without prejudice to the legal 
arguments of either party in the 
proceedings before the Court or in any 
difference of opinion which may arise 
over whether particular documents are 
protected, and without prejudice to 
further clarification by the Commission 
of its intended practice. 
The services of the Commission have 
always considered that, depending on the 
circumstances, documents for which 
protecion is claimed need not be read in 
full by the Commission's inspector for 
the purpose of establishing whether they 
should be regarded as protected or not. 
The services of the Commission consider 
that the question of the extent to which 
the inspector must be able to examine 
the contents of documents for which 
protection is claimed must be governed 
by the following principles: 
— the public interest in ensuring that all 
relevant evidence be submitted to the 
Commission and the Court requires 
that a claim that a document is 
protected must be clearly established; 
— for that purpose the inspector 
responsible must be put in a position 
in which he can be satisfied 
objectively and with reasonable 
certainty that the document is one 
which is protected under Community 
law; 
— the document is to be inspected only 
as far as is necessary for the purpose 
of establishing with the appropriate 
degree of certainty whether it is 
protected or not; 
— the extent to which it may be 
necessary for the inspector to see the 
text of the document will depend on 
all the circumstances. In practice it 
would normally be sufficient for him 
to see the first and last pages of the 
document and the headings, if any, 
provided that these clearly show the 
nature of the entire document. In 
cases where for any reason such a 
disclosure does not permit the 
question of protection to be 
determined with the appropriate 
degree of certainty, the inspector 
must have a right to see other sub­
stantial parts of the document (in 
addition of course to obtaining 
evidence outside the text of the 
document itself if necessary). 
1628
AM 4: S v COMMISSION 
I hope that this letter may be a sufficient 
basis to enable you to meet with 
Commission officials again. If so, it 
would be useful if you had with you 
copies of all the documents in question 
Iv 
The offer contained in that letter was 
declined on behalf of the applicant, 
mainly because the Commission did not 
thereby resile from its view that its 
inspectors were, in the last resort, 
entitled to see as much of a document as 
they thought fit before deciding whether 
it was privileged. 
On 17 December 1979 the Commission 
lodged its defence, whereby it made two 
further concessions. The first was that its 
Decision was to be interpreted as 
meaning that "the inspector is auth­
orized to look at documents for which 
protection is claimed only 'as far as is 
necessary for the purpose of establishing 
whether they should be used or not', i.e. 
used as evidence". The second was that 
"the Commission is prepared to give an 
assurance that its inspectors will be 
instructed that they are not to use any 
knowledge which they may gain as a 
result of inspecting documents for the 
purpose of deciding whether they are 
protected". Reliance was placed on 
behalf of the Commission, in subsequent 
argument before us, on the fact that it 
had made those concessions. 
The Commission's defence, apan from 
announcing those concessions, fell into 
two parts. The first part consisted of a 
general discussion of the question of the 
protection of "legal confidence" in 
Community law. It was there that the 
Commission put forward its contention, 
with which I have already dealt, about 
the "legislative history" of Article 14. In 
that part also the Commission referred to 
the Edward Report, to the paper written 
for the FIDE Congress by Drs 
Ehlermann and Oldekop, and to the 
answer given by the Commission to Mr 
Cousté's Parliamentary Question (No 
63/78). The Commission then went on 
to discuss two sources of authority on 
English law, which, in my opinion, it has 
misunderstood: the Law Reform 
Committee's 16th Report on "Privilege 
in Civil Proceedings" (Cmnd. 3472) and 
the decision of the House of Lords in 
Waugh v British Railways Board [1980] 
AC 521. (I shall discuss those authorities 
in a moment). The Commission 
concluded that "the question whether 
protection should be given for legal 
confidence, and if so how far it should 
be given and by what mechanism it 
should be controlled, are questions of 
policy to be decided pragmatically 
according to circumstances" and not 
questions of principle. The Commission 
expressed its agreement with the 
applicant that "the issues in this case are 
entirely questions of procedure". In the 
second pan of the defence it argued in 
favour of a procedure "on the lines set 
out in" its letter of 31 October 1979. 
The applicant in its reply stated "the very 
narrow issue that divides the paraes" to 
be: "In order to verify claims for 
protection of documents under the 
principle of legal confidence, is the 
Commission entitled, as it claims, to 
inspect the documents for which the 
claim is made? Or, as the applicants 
claim, must the Commission take 
advantage of other means of verification 
that do not involve the Commission itself 
gaining knowledge of the legal 
confidences that are to be protected?" 
The view that the issue in the case was a 
narrow one, relating only to the 
procedure whereby the question whether 
1629
OPINION OF MR TÅRNER — CASE 155/79 
a document was protected from 
disclosure should be decided, was 
reiterated by the Commission in its 
rejoinder. 
Of the interveners, the British and 
French Governments both stated their 
views on the question of substantive law, 
the British Government contending that 
the concept of "legal professional 
privilege" or "confidentiality" or "secret 
professionnel" formed part of "the law" 
of the Community in the sense borne by 
that expression in Article 164 of the 
Treaty, and the French Government 
contending the contrary. Neither 
government, however, developed the 
point at all fully in its written obser­
vations. The CCBE, on the other hand, 
pointed out that "Questions of 
procedure do not arise in vacuo" and 
that it would be necessary for the Court, 
before it could decide the procedural 
question, to decide whether there was a 
principle of Community law affording, 
as of right, protection against disclosure 
of confidential communications between 
lawyer and client, and, if so, what its 
scope was. The CCBE accordingly made 
very full written submissions on those 
questions. 
The Court agreed with the CCBE and 
invited the parties and the intervening 
governments to make submissions at the 
hearing on those questions of principle. 
The applicant and the British and French 
Governments did so. Counsel for the 
Commission, on the other hand, told us 
that his instructions were to remain 
neutral on that issue and to leave it to 
"the wisdom of the Court". He was to 
stand by the answer given by the 
Commission to Mr Cousté and neither to 
accept nor to dispute that there was a 
principle of Community law such as was 
contended for by the applicant, the 
British Government and the CCBE. He 
pointed out that, if there were no such 
principle, the Commission must 
necessarily win this case, whilst, if there 
were such a principle, the Commission's 
arguments on the procedural question 
would be relevant. 
There are thus in my opinion two major 
issues in this case. 
The first is whether the exercise by the 
Commission of its powers under Article 
14 of Regulation No 17 is subject to a 
principle affording, as of right, 
protection against the disclosure of 
communications passing between a 
lawyer and his client for the purpose of 
seeking or giving legal advice. The Court 
is not, I think, called upon, if it holds in 
favour of the existence of such a 
principle, to define in this case its precise 
scope, for instance to say to what extent 
it may apply where the communications 
are between an undertaking and a lawyer 
employed on its own staff (an "in-
house" lawyer), or may not apply where, 
in the words of Drs Ehlermann and 
Oldekop, "the lawyer himself assists or 
participates in illegal activities of his 
client". 
The second issue is, if such a principle 
exists, as to the correct procedur for 
giving effect to it. 
V — The issue of principle 
As respects the first issue I propose to 
begin by dealing with a suggestion that 
was tentatively put forward on behalf of 
the British Government, to the effect 
that, if the Court should hold that there 
was no principle of Community law of 
the kind for which it primarily 
contended, the solution might lie in 
holding that, in the absence of any 
relevant Community law, the provisions 
of the national law of each Member 
State should be applied in relation to 
documents found in that Member State. 
That solution, the British Government 
1630
AM íc S v COMMISSION 
said, would at least secure that the 
expectations of those who obtained legal 
advice in each Member State were not 
disappointed: the same rights could be 
invoked against the Community auth­
ority as against national authorities. 
Moreover the adoption of that solution 
would act as a spur to the enactment of 
Community legislation on the subject. 
The British Government cited, as 
affording some support for such an 
approach, Case 267/78 Commission v 
Wy[1980]ECR31. 
In my opinion that solution will not 
do. As die British Government itself 
acknowledged, the preamble to Regu­
lation No 17 repeatedly refers to the 
need for Articles 85 and 86 of the Treaty 
to be applied in a uniform manner in the 
Member States, and it does so specifi­
cally in relation to the Commission's 
powers to undertake investigations. Case 
267/78 is in my opinion distinguishable, 
because the Community legislation there 
in question did not confer powers of 
investigation directly on the Commission 
itself; it merely enabled the Commission 
to be "associated with" inspection 
measures carried out by the national 
authorities. 
Having regard to the attitudes adopted 
by the parties and by the other 
interveners, the French Government bore 
alone the burden of arguing that there 
was no principle of Community law 
restricting the powers of the Commission 
under Article 14 of Regulation No 17. In 
so doing the French Government relied 
mainly on two propositions: (i) that there 
was no express provision of Community 
law imposing such a restriction and 
(ii) that the relevant laws of the Member 
States were too disparate for there to be 
derived from them any general principle 
that might apply! The French 
Government went so far as to suggest 
that the present case represented an 
attempt to foist on the Community what 
was no more than a domestic rule of 
English law. 
The French Government's first 
proposition is unquestionably correa. 
This Court, however, has never regarded 
the absence of an express provision as 
precluding it from holding that a general 
principle of law could affect the 
application of Community legislation. 
Were it otherwise, Community law 
would admit, for example, of no 
principle of proportionality of no 
protection for legitimate expectations, of 
no right to be heard (except where 
expressly provided for) and of no 
guarantee of fundamental human rights. 
The French Government referred to 
Case 41/69 ACF Chemie/arma v 
Commission [1979] 2 ECR 661, where 
the Court held that it could not write 
into Regulation No 17 a period of 
limitation within which the Commission 
must initiate proceedings against an 
undertaking. That case is not, however, 
in my opinion, in point, because there 
can be no general principle about the 
length of a limitation period, if any. The 
imposition of it necessarily involves a 
choice that can be made only by a 
legislative act. 
So the real question here is whether or 
not the laws of the Member States evince 
the existence of a general principle of the 
kind in question. I agree with the CCBE 
that, if such a principle can be distilled 
from them, it matters not if its 
conceptual origin, the methods wherebv 
it has been developed, or even the scope 
1631
OPINION OF MR WARNER — CASE 155/79 
of its application in detail, differ from 
Member State to Member State. 
I have already said that I did not propose 
to analyse or even to summarize the 
contents of the Edward Report. Nor do I 
propose to attempt an analysis of all the 
further authorities that have been placed 
before the Court as a result of the 
researches undertaken by the CCBE and 
by counsel for the applicant since the 
Edward Report was written. From an 
examination of that wealth of material, 
which covers the laws of all the Member 
States except Greece (because the case 
was argued before the accession of 
Greece to the Community) and also the 
laws of some non-member States, certain 
obvious conclusions can be drawn : 
(i) As the French Government 
conceded, some protection for the 
confidentiality of communications 
between lawyer and client is given 
by the laws of all the Member 
States. In every Member State the 
hard core of the relevant law is that 
a lawyer cannot be called upon to 
give evidence of what he has been 
told by his client. But everywhere 
the protection extends beyond that. 
(ii) In all Member States the protection 
is afforded primarily by imposing on 
the lawyer an obligation not to 
disclose the contents of those 
communications. In some countries 
(e.g. France) a breach of that 
obligation by the lawyer is a 
criminal offence. In others (e.g. 
England) it is only a civil wrong. In 
some countries (e.g. England) the 
obligation is owed only to the client, 
so that it is extinguished if the client 
waives his right to performance of 
it. In other countries (e.g. France) 
the obligation is considered to be 
"d'ordre publique", so that waiver 
by the client is not enough; the 
lawyer retains a discretion whether 
or not to disclose the contents of the 
communication. Incidental differ­
ences such as those do not, how­
ever, in my opninion, go to the 
heart of the matter. 
(iii) In each country the development of 
the law has been largely conditioned 
by procedural rules characteristic of 
the legal system of that country. In 
England, for instance, much of the 
law has been developed in the 
context of "general discovery" in 
civil proceedings. That is a 
procedure under which, at an 
interlocutory stage in a civil action, 
each party is required to disclose to 
the other all the documents in his 
possession, custody or power 
relating to matters in question :r, the 
action, whether or not such 
documents would be admissible in 
evidence. Documents covered by 
"legal professional privilege" «re 
exempt from such discovery. The 
procedure has, I believe, no exact 
equivalent in the legal system of any 
non-common law country — not 
even in the Scottish system. In 
Belgium and France on the other 
hand, many of the authorities are 
concerned with the powers and 
obligations of the "juge d'instruc­
tion", particularly when carrying 
out a search at the professional 
chambers of an "avocat". The "juge 
d'instruction" has, as we learned in 
Case 267/78, no direct equivalent in 
many other Member States. There 
again, however, such incidental 
differences do not, in my opinion, 
go to the heart of the matter. 
1632
AM & S v COMMISSION 
(iv) To some extent also the 
development of the law in each 
country has been conditioned by the 
organization of the legal profession 
in that country, for instance, in 
England by the existence of the 
distinctive roles of barristers and 
solicitors, and in France by the 
distinctions between "avocats 
plaidants", "avocats consultants", 
"avoués" and "notaires". Once 
again, such differences do not, in 
my opinion, go to the heart of the 
matter. 
Here we are concerned with documents 
found at the premises of the client which 
are claimed to be, or to reproduce, 
communications passing between the 
client and his lawyer for the purpose of 
requesting or giving legal advice. The 
question is whether such documents are 
protected from disclosure to a public 
authority exercising a statutory power of 
search. 
As to that I must begin, I think, by 
saying a word about English law, partly 
because of the widespread impression 
that English law is, in this field, the most 
developed, and partly because, as I 
indicated earlier, the Commission has in 
my opinion misinterpreted some of the 
authorities relating to that law. 
In English law the doctrine misnamed 
"legal professional privilege" (misnamed 
because that label suggests a privilege 
accorded to the legal profession) protects 
two distinct categories of documents. 
The first category is 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. The second category is 
communications between a person or his 
lawyer and third parties for the purpose 
of preparing for pending or 
contemplated legal proceedings. That 
distinction is clearly brought out in the 
authorities to which the Commission 
referred, the 16th Report of the Law 
Reform Committee and the judgments in 
the House of Lords in Waugh v British 
Railways Board — see in particular, in 
the latter, per Lord Edmund Davies 
[1980] AC at pp. 541-542. 
Waugh v British Railways Board was 
about a document in the second 
category, namely a railway accident 
report which had been prepared for two 
distinct purposes, one of which was to 
enable the Board's solicitor to advise it 
upon, and to conduct on its behalf, any 
litigation that might arise from the 
accident. It was held that the repon was 
not privileged because, in the case of a 
document in the second category, the 
purpose of preparing for legal 
proceedings must be the sole or 
dominant purpose. That requirement is 
however irrelevant in the case of 
documents in the first category, with 
which alone we are concerned in the 
present case. Waugh v British Railways 
Board is not therefore, in my opinion, in 
point in this case. 
From the 16th Report of the Law 
Reform Committee the Commission 
deduced two propositions, neither of 
which, im my opinion, it supports. 
The first was that "privilege" in English 
law is essentially a right to withhold 
evidence from a tribunal. This 
proposition the Commission deduced 
from the first sentence of the Report, 
which reads as follows: 
"Privilege in the law of evidence is the 
right of a person to insist on there being 
withheld from a judicial tribunal infor­
mation which might assist it to ascertain 
1633
OPINION OF MR EARNER — CASE 155/79 
facts relevant to an issue upon which it is 
adjudicating." 
The point here is that the terms of 
reference of the Committee did not 
rquire it to examine the law of privilege 
generally, but only to examine its 
operation in civil litigation. Hence the 
Committee's definition of its scope in 
that sentence. The Committee did not 
thereby mean, and could not have 
meant, that "privilege" was no more 
than part of the law of evidence in civil 
proceedings. 
From the remainder of the first 
paragraph of the report the Commission 
deduced that the approach of English 
law to "privilege" was pragmatic and 
that the extent of the protection it gave 
in any case depended on the particular 
circumstances of that case. In a general 
sense that is true. But the point that the 
Committee was making, so far as here 
relevant, was that in some cases the law 
gives a person an absolute right to claim 
privilege, whilst in others it accords the 
judge a discretion. As subsequent 
paragraphs of the report make clear (see 
in particular paragraphs 17 to 23), where 
"legal professional privilege" applies, it 
confers an absolute right; the judge has 
no discretion. Nor did the Committee 
recommend any change in the law in 
that respect. 
Thus, in my opinion, the English auth­
orities relied on by the Commission do 
not support the propositions for which it 
cited them. 
As regards statutory powers of search, 
the starting point of English law, as we 
were reminded by the CCBE and by 
the British Government, is that the 
confidential character of a communi­
cation between a lawyer and his client 
comes into existence at the time when 
the communication is made. The right to 
have that confidentiality protected arises 
at the same time and continues thereafter 
for evermore. The right may however be 
overridden or modified by a statute. 
Some United Kingdom statutes 
conferring powers of investigation 
expressly preserve the right. Such is in 
particular the case of Section 85 of the 
Fair Trading Act 1973 and Sections 3 
and 7 of the Competition Act 1980. 
Thus, in the very field of competition 
law with which we are here concerned, 
the relevant United Kingdom statutes 
preserve the right as against the United 
Kingdom authorities. 
Some United Kingdom statutes preserve 
the right, but subject to modification. An 
example of that i' to be found in 
paragraph 5 of Sehet, ¡le 4 to the Finance 
Act 1975. 
Lastly some United Kingdom statutes 
are, like Regulation No 17, silent on 
the point. Counsel for the British 
Government hesitated to say that, in 
such a case, the presumption was that the 
right was preserved. There is a surprising 
dearth of United Kingdom judicial 
authority directly on that question. The 
only case that comes anywhere near 
dealing with it seems to be Frank Truman 
Export Ltd v Metropolitan Police 
Commissioner [1977] 1 QB 952, but it 
does not really do so. We were however 
referred on behalf of the applicant to the 
well established principle of English law 
that a statute is not to be interpreted as 
altering the common law to a greater 
extent than its terms provide, either 
expressly or by necessary implication — 
see Maxwell on the Interpretation of 
Statutes, 12th Ed., pp. 116 et seq. We 
were also referred on behalf of the 
applicant to cases in Canada and in New 
1634
AM & S v COMMISSION 
Zealand where that principle has been 
applied to statutes conferring powers of 
investigation on public authorities 
without saying anything about the 
privilege of communications between 
lawyer and client, and where, 
accordingly, it has been held that such 
statutes did not override that privilege — 
see in particular Re Director of 
Investigation and Reserarch and Shell 
Canada Ltd (1975) 55 DLR (3d) 713, 
where the Federal Court of Appeal of 
Canada so held in realtion to section 10 
of the Canadian Combines Investigation 
Act (a competition law provision), and 
Commissioner of InUnd Revenue v West-
Walker [1954] NZLR 191, where the 
Court of Appeal of New Zealand so held 
in relation to section 163 of the Land 
and Income Tax Act of New Zealand (a 
fiscal law provision). Decisions of the 
superior courts of Canada and of New 
Zealand are of persuasive authority in 
the English courts and I can, for my 
part, see no good reason why an English 
court should not follow those particular 
decisions. 
I conclude that, if a provision like Article 
14 of Regulation No 17 were to be 
found in an English statute, it would 
almost certainly be held not to override 
the confidentiality of communications 
between lawyer and client. 
I must next say a word about the laws of 
Belgium and of France, because 
particular reliance was placed on them, 
on the one hand by the applicant and the 
CCBE and on the other hand by the 
French Government. 
It seems clear from the authorities to 
which we have been referred that, in 
those two countries, the law protecting 
the confidentiality of communications 
between lawyer and client has developed 
not only on the basis of the concept of 
the "secret professionnel" but on the 
basis also of the concepts of "les droits 
de la défense" and of "le secret des 
lettres". The latter, sometimes called "le 
secret des lettres missives" or "le secret 
des lettres confidentielles", appears to be 
particularly important. 
A helpful summary of the resultant law is 
to be found in a repon and an opinion 
presented to the Belgian Conseil d'État 
by its Auditeur, C. Huberlant, in 
Delhauter v Caisse générale d'épargne et 
de retraite, JT 1962, p. 171. The Conseil 
d'État followed his opinion and held that 
the defendant could not be called upon 
to disclose an opinion ("consultation") 
that it had received from its "avocat" 
even though it had expressly relied upon 
it in the decision that was under 
challenge before the Conseil d'État. 
Most of the Belgian and French auth­
orities concerning statutory powers of 
search are about the obligations of the 
juge d'instruction when carrying out a 
criminal investigation. It is clear that he 
must respect the confidentiality of 
communications between a lawyer and 
his client. The French "Code de 
Procédure Pénale", by Articles 56, 76 
and 96 expressly requires him to take 
beforehand effective measures to ensure 
that the "secret professionnel" and the 
"droits de la défense" shall be respected, 
wherever he may search. When the juge 
d'instruction searches the professional 
chambers of an avocat, he is 
accompanied by the bâtonnier or his 
representative, whose role it is to make 
sure that the confidentiality of communi­
cations between the avocat and his 
clients is respected. 
The French Government drew our 
attention, however, to an important 
exception to the general rule. The 
French Ordonnance No 45-1484 of 30 
June 1945, which is described in its title 
as relating to "la constatation, la 
poursuite et la répression des infractions 
à la législation économique", provides, 
by Article 15 : 
1635
OPINION OF MR WARNER — CASE 155/79 
"Les agents visés à l'article 6 
(paragraphes 1 et 2) peuvent exiger la 
communication, en quelque main qu'ils 
se trouvent, et procéder à la saisie des 
documents de toute nature (comptabilité, 
copies de lettres, carnets de chèques, 
traites, comptes en banque, etc.), propres 
à faciliter l'accomplissement de leur 
mission. Ils ont le droit de prélever des 
échantillons. 
Les agents de la direction générale du 
contrôle économique, des régies 
financières, de la répression des fraudes 
et des poids et mesures peuvent 
également, sans se voir opposer le secret 
professionnel, consulter tous documents 
dans les administrations ou offices de 
l'État, des départements, des communes 
et des colonies, les établissements publics 
et assimilés, les établissements et 
organismes placés sous le contrôle de 
l'Etat, ainsi que les entreprises et services 
concédés par l'État, les départements, les 
communes et les colonies." 
It was held by the French Conseil d'État 
in the Appratite case (Recueil des Arrêts 
du Conseil d'État, 1952, p. 512) that, 
although only the second paragraph of 
Article 15 expressly excluded the 
application of "le secret professionnel", 
it was also excluded by the first 
paragraph, so that M. Apraillé, an 
"avoué", had properly been fined for 
refusing to disclose confidential 
documents. 
That decision shows of course that in 
France, as in England, an aptly worded 
statutory provision can override the 
confidentiality of communications be­
tween a lawyer and his client. It also 
shows how the Conseil d'État interpreted 
the particular statutory provision there in 
question. But it does not, so it seems to 
me, establish the existence of a general 
rule of French law that, if a statutory 
provision conferring a power of investi­
gation is silent as to such communi­
cations, it automatically overrides their 
confidentiality. 
The laws of the other countries of the 
Community were not discussed in 
anything like the same detail in the 
argument before us. I hope that I shall 
not be thought to minimize their 
importance if I confine myself, as 
regards them, to referring your 
Lordships to the written observations of 
the CC6E, and in particular to the 
appendices thereto, and to saying that 
the authorities there cited seem to me, 
on the whole, to lend support to the 
CCBE's submissions. It seems at all 
events clear that, in no country other 
than France, does legislation confer on 
the authorities responsible for the 
administration of competition law 
powers of investigation enabling them 
to disregard the confidentiality of 
communications between lawyer and 
client. Indeed, had it been otherwise, it is 
difficult to see how Doctors Ehlermann 
and Oldekop could have reached the 
conclusions they did. 
There is however one point on which I 
think that the submissions of the 
applicant and of the CCBE went too far. 
They submitted that the right to 
confidential communication between 
lawyer and client was a fundamental 
human right. I do not think it is. There is 
no mention of it, as such, in the 
European Convention on Human Rights, 
or, seemingly, in the constitution of any 
Member Sute; and your Lordships have 
already seen that, in England and in 
France at least, it is acknowledged to be 
a right that can be overridden or 
modified by an appropriately worded 
statute. The material placed before the 
Court by the CCBE shows that that is so 
also in Belgium. In my opinion it is a 
right that the laws of civilized countries 
generally recognize, a right not lightly to 
be denied, but not one so entrenched 
that, in the Community, the Council 
1636
AM & S v COMMISSION 
could never legislate to override or 
modify it. I agree, however, that the 
Council cannot be held to have 
overridden it simply by dint of saying 
nothing about it. 
My conclusion therefore, on this part of 
the case, is that the powers of the 
Commission under Article 14 of Regu­
lation No 17 are exerciseable subject to 
the right of the undertaking under 
investigation to claim confidentiality for 
communications passing between itself 
and its lawyers for the purpose of 
seeking or giving legal advice. 
The next question is as to the procedure 
that is appropriate to secure that right 
whilst avoiding its abuse. 
VI — The procedural issue 
The fundamental basis of the 
Commission's position on that issue is 
that the only satisfactory way of deciding 
whether a document is entitled to 
protection is by allowing someone to 
look at it. With that I agree. 
The Commission goes on to say that, 
under present arrangements, that 
someone can only be its own inspector. 
As your Lordships have seen, the 
Commission concedes that in many cases 
the inspector need not look at the whole 
of the document in order to be satisfied. 
But, the Commission submits, the forms 
that communications between a lawyer 
and his client may take are so diverse 
that the inspector must be allowed to 
look at as much of the document as he 
thinks fit and, if necessary, at the whole 
of it. The Commission stresses the 
concessions that it has made that, not 
only will a protected document not be 
copied, but the inspector will not be 
allowed to use knowledge that he has 
gained from it. In that connection the 
Commission says that, under the organ­
ization of its Direcorate-General of 
Competition, the role of the inspector is 
only to gather evidence. The evidence so 
collected is handed over to an official in 
another Directorate of the direcorate-
General, who becomes the "rapporteur" 
in the case. The inspector who sees the 
documents is not the person who later 
decides whether there is sufficient 
evidence that the undertaking concerned 
has infringed the Treaty. That is the 
responsibility of other officials, including 
members of the Legal service, and 
ultimately of the Commission itself. 
The Commission considers that, under 
those arrangements, the only opportunity 
that this Court can have to review an 
inspector's decision as to whether a 
document is entitled to protection or not 
is in an action brought by the under­
taking concerned under Article 173 of 
the Treaty to challenge any eventual 
decision of the Commission that the 
undertaking has been guilty of an 
infringement of the Treaty. If then the 
Court found that the decision had been 
based in a sufficiently important respect 
on information contained in a document 
that should have been treated as 
protected but was not, the Court could 
declare the decision void. There was, the 
Commission submitted, in the present 
state of the legislation, no earlier stage at 
which the Court be called upon to 
intervene. 
To be fair to the Commission, it does 
not claim that the procedure it contends 
for is perfect. It states its readiness to 
alter the procedure by regulation and 
says that it "will of course be guided by 
anything the Court may say in its 
judgment in this case". The Commission 
submits, however, that "with the safe­
guards outlined its procedure is a 
reasonably satisfactory procedure and 
1637
OPINION OF MR EARNER — CASE 155/79 
the only procedure available under 
existing Community law", and that 
"until it is changed, it must be used". 
I will say at once that I do not share the 
Commission's view that that is the only 
procedure available under existing 
Community law. Nor am I sure that the 
Commission is itself empowered to alter 
the relevant legislation. Article 87 of the 
Treaty confers legislative powers only on 
the Council and, whilst the Council has 
delegated some legislative powers to the 
Commission by Article 24 of Regulation 
No 17, it is by no means clear that they 
extend to the present subject-matter. 
I am also impressed by some of the 
criticisms made by the applicant and 
others of the procedure favoured by the 
Commission. 
In the first place that procedure, in my 
opinion, confers too much power on the 
inspector, who need not be a lawyer and 
who, even if he is a lawyer, may make 
mistakes, not least because we are in an 
area of Community law that is still 
largely uncharted. If the inspector er­
roneously decides, in the case of a 
document which in truth is entitled to 
protection, that it is not entitled to 
protection, there is nothing to stop him 
taking copies of it, or to stop it there­
after being freely used by the 
Commision. In such a case the suggested 
remedy in an eventual action before this 
Court will be illusory. The dissemination 
of a document that should have 
remained confidential will have taken 
place long before any such action can be 
brought. Moreover the availability of 
that remedy will depend on the 
Commission reaching a decision adverse 
to the undertaking concerned and on its 
basing that decision to a material extent 
on the contents of that document. 
Alternatively, the inspector may, having 
seen the confidential contents of a 
document, decide that it is protected. In 
that case he is required by the 
Commission's instructions to put what he 
has seen out of his mind. We all know 
how difficult it is, even for a judge, to 
perform that feat. But, even if the 
inspector does conscientiously and suc­
cessfully perform it, those affected will 
not be able to be sure that he has done 
so. We were reminded by the applicant, 
in this connection, of the maxim that 
"justice should not only be done, but 
should manifestly and undoubtedly be 
seen to be done". We were also told by-
counsel for the applicant that, despite the 
division of functions between the 
inspector and other officials within the 
Commission's Directorate-General of 
Competition, it is none the less the 
practice for the inspector to attend the 
oral hearing held by the Commission, 
and for him to participate in it by putting 
questions to representatives of the under­
taking or undertakings concerned. It 
would be impossible, in my opinion, for 
anyone to be sure that a question put by 
the inspector, the answer to which would 
be recorded and could be used in 
evidence, had not been inspired, albeit 
unconsciously perhaps, by something 
that he had read in the protected 
document. 
The fundamental flaw in the procedure 
advocated by the Commission, or 
perhaps rather in the thinking that 
underlies it, seems to me to be that it 
misapprehends the real basis of the 
principle protecting the confidentiality of 
communications between a lawver and 
his client, which, in a nutshell, is that, in 
a civilized society, a man is entitled to 
feel that what passes between him and 
his lawyer is secure from disclosure. That 
principie is accordingly breached as soon 
1638
AM &: S v COMMISSION 
as there is disclosure of the contents of 
such a communication, and not merely 
by its being used in evidence. That is not 
to say, of course, that, where a genuine 
dispute arises as to whether a document 
is entitled to protection, someone should 
not look at it to resolve the dispute. But 
that someone should, in general, be 
independent of the parties to the dispute, 
and be himself secure — which is 
another way of saying that the determi­
nation of such a dispute is essentially a 
judicial function. 
The applicant's main submission was 
that, until on the inititative of the 
Commission the Council made a regu­
lation for the verification of claims for 
protection of documents on grounds of 
"legal confidence", it was incumbent 
both on the undertaking claiming such 
protection and on the Commission to 
take reasonable steps to agree upon a 
means of verification that did not involve 
the Commission itself being entitled to 
see the contents of the documents, since 
that would be "a clear denial" of the 
principle of the protection of "legal 
confidence". In the event of ultimate 
disagreement between the parties, it 
would, the applicant submitted, be for 
this Court to inspect the documents and 
adjudicate on the dispute. 
The applicant envisaged that, if the 
Commission and the undertaking 
concerned in a particular case disagreed 
on the question whether each of them 
had taken such "reasonable steps", the 
Commission could proceed to take a 
decision imposing on the undertaking a 
fine under Anicie 15 (1) (c) of Regu­
lation No 17 or periodic penalty 
payments under Article 16 (1) (d) of that 
Regulation. The dispute could then be 
brought before this Court by way of an 
action by the undertaking under Article 
173 of the Treaty challenging that 
decision. 
The applicant made various suggestions 
as to the sort of "reasonable steps" 
that the parties might take, whilst 
emphasizing that those steps might vary 
from case to case and might be for 
discussion between the undertaking and 
the Commission. The applicant instanced 
an attempt by the undertaking 
concerned, such as it had itself made in 
the appendix to Mr Thomson's letter of 
26 March 1979, to give a careful 
description of the nature of the 
documents; and an attempt, again such 
as it had itself made, to show 
Commission officials enough of each 
document to persuade them of its nature. 
As a last resort the applicant envisaged 
the possibility for the parties to agree 
upon "a reputable experienced and 
wholly independent lawyer" who could 
inspect the documents and verify their 
description. If the undertaking refused a 
request by the Commission that the 
documents should be submitted to such 
an independent lawyer, it should, the 
applicant said, be held to have acted 
unreasonably and therefore disentitled to 
succeed in any action it might bring 
before this Court to challenge a decision 
of the Commission imposing a fine or 
penalties upon it. 
The applicant conceded that that was an 
"improvised" procedure but submitted 
that improvisation was inevitable in the 
absence of legislation prescribing a 
proper procedure. The blame lay with 
the Commission for not having exercised 
its power to propose such legislation. 
There are to my mind two objections to 
the course thus proposed by the 
applicant. 
The first is that the task of this Court in 
this case is to lay down what is the 
correct procedure in the present state of 
1639
OPINION OF MR EARNER — CASE 155/79 
Community law, not to give its approval 
to suggestions for improvisation pending 
the enactment of further Community 
legislation, if any. 
The second is that the adoption of that 
course would involve departing in two 
ways from the institutional structure of 
the Community as laid down in the 
Treaty. First it would involve delegating 
a power of decision to a person, "the 
independent lawyer", not recognized by 
the Treaty. Secondly it would involve 
requiring the Commission to adopt a 
decision in ignorance of the full facts on 
which the decision was based, leaving 
those facts to be ascertained by this 
Court. 
The latter objection applies also, in my 
opinion, to somewhat analogous pro­
cedures that were suggested to us on 
behalf of the British Government and of 
the CCBE. 
I have come to the conclusion that it is 
impossible — and it is indeed logically 
impossible — to envisage a procedure 
which, on the one hand, ensures that the 
contents of a document for which 
protection is claimed are not disclosed to 
anyone in the Commission so long as 
there has been no authoritative decision 
that that claim is ill-founded, whmt, on 
the other hand, leaving it to the 
Commission to decide in the first 
instance upon the validity of that claim, 
so as to pave the way for proceedings 
about it in this Court. 
One might envisage a procedure under 
which the existing internal arrangements 
of the Commission were improved, so 
that, for instance, where an undertaking 
claimed protection for a panicular 
document and was unable to persuade 
the Commission's inspector, on the spot, 
of its protected nature, the document 
could be sent in a sealed envelope for 
perusal by, say, someone in the 
Commission's Legal Service, who would 
be required to impart its contents only 
to the Members of the Commission 
responsible for taking the actual decision 
on the claim, and who would be 
required, also, to take no further 
personal part in the case. But I can find 
no provision in the present legislation on 
the basis of which such a procedure 
could be prescribed, and it would still be 
open to the objection that it necessitated 
disclosure of the contents of the 
document to persons within the 
Commission. 
In the result I am of the opinion that the 
solution lies in a submission that was 
made on behalf of the CCBE, and also 
by counsel for the applicant at the 
hearing, as an alternative to his main 
submission. It is that reson should be 
had to the national courts. That solution 
differs, of course, from the solution put 
forward by the British Government as its 
alternative submission on the issue of 
principle, in that it involves, not the 
application of national law, but the 
application by the national courts of 
Community law, those courts being able, 
when in doubt, to refer to this Court 
under Article 177 of the Treaty. 
There is, in my opinion, a sound 
legislative basis for that solution in 
paragraph 6 of Article 14 of Regulation 
No 17, which requires a Member State, 
where an undertaking "opposes" an 
investigation ordered pursuant to that 
Article, to "afford the necessary 
assistance to the officials authorized by 
the Commission". The organs of the 
Member State there referred to must 
include its courts. Moreover resort to 
them appears all the more logical when 
one bears in mind that, by virtue of 
Article 13 of the Regulation, an 
investigation ordered by the Commission 
under Article 14, including one ordered 
1640
AM íc S v COMMISSION 
by decision of the Commission under 
Anicie 14 (3), may be undertaken by 
officials of the competent authorities of 
the Member States instead of by officials 
of the Commission. Where a dispute of 
the present kind arose between an under­
taking in a Member State and the 
competent authority of that Member 
State, the natural forum for resolving it 
would be the courts of that State. Indeed 
it is difficult to envisage any other. It 
would, I think, be odd if the appropriate 
forum differed according to whether the 
investigation was being carried out by 
officials of the national authority, 
assisted or not by officials of the 
Commission under Anicie 13 (2), or by 
officials of the Commission, assisted or 
not by officials of the national authority 
under Article 14 (5). It is to be observed 
that the ultimate sanctions provided for 
by Articles 15 (1) (c) and 16 (1) (d) 
apply in either case. There is of course 
no difficulty in the way of the 
Commission appearing as a party to 
proceedings in the courts of a Member 
State — see Anicie 211 of the Treaty. 
Counsel for the Commission, at the 
hearing, questioned whether that 
solution would be appropriate. He did 
so, as I understood him, on three 
grounds. 
The first was that an appropriate 
procedure might not exist in all Member 
States. He himself, however, rather 
destroyed that ground when he 
conceded, on the basis of paragraph 13 
of the judgment of this Court in Case 
826/79 the Mireco case (10 July 1980, 
not yet reponed), which had been cited 
by counsel for the applicant, that resort 
to the national courts would be appro­
priate where the dispute arose between 
an undertaking and a national authority 
enforcing Community competition law. 
At all events, Anicie 14 (6) of Regulation 
No 17 seems to me, particularly in the 
light of Article 5 of the Treaty, amply 
adequate to require Member States to 
introduce the necessary procedures if 
and in so far as they do not already exist. 
Counsel's second ground was that, if the 
matter were left to national courts, there 
would be a risk that in practice they 
would apply their national rules of law. 
That, in my opinion, is not a tenable 
ground. National courts are used to 
distinguishing between cases where they 
must apply their national law and cases 
where they must apply Community law. 
Indeed it is their duty so to do. 
Counsel's third ground was at first sight 
more impressive. It was that resort to the 
national courts would cause delay. One 
answer to that is of course that the risk 
of delay is no reason for denying a 
person justice. But in any case I think 
that the risk can be exaggerated. The 
paucity of reponed cases about disputes 
of the present kind shows that they are 
in fact rare. That is so even in England, 
where, so it seems from what we have 
learnt in the present case, the legal 
profession is particularly alert to the 
need to protect confidential documents, 
and where both the substantive and the 
procedural law afford ample oppor­
tunities for litigation about it. I think it 
probable that, in practice, provided that 
the Commission's inspectors exercise 
common sense, such a dispute will arise 
only where either the undertaking 
1641
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