61979CJ0155_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 155/79
AM & S EUROPE LIMITED, REPRESENTED BY J . LEVER, QC, OF GRAY ' S INN, C . BELLAMY, BARRISTER, OF GRAY ' S INN, AND G . CHILD, SOLICITOR, OF MESSRS SLAUGHTER AND MAY, LONDON, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MESSRS ELVINGER AND HOSS, 15 COTE D ' EICH,
APPLICANT,
SUPPORTED BY
THE UNITED KINGDOM, REPRESENTED BY W . H . GODWIN, PRINCIPAL ASSISTANT TREASURY SOLICITOR, ACTING AS AGENT, ASSISTED BY THE RT . HON . S . C . SILKIN, QC, OF THE MIDDLE TEMPLE, AND BY D . VAUGHAN, QC, OF THE INNER TEMPLE, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE BRITISH EMBASSY, 28 BOULEVARD ROYAL,
AND
THE CONSULTATIVE COMMITTEE OF THE BARS AND LAW SOCIETIES OF THE EUROPEAN COMMUNITY, REPRESENTED BY D . A . O . EDWARD, QC, OF THE SCOTS BAR, AND J.-R . THYS, OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF T . BIEVER AND L . SCHILTZ, 83 BOULEVARD GRANDE-DUCHESSE CHARLOTTE,
INTERVENERS,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, J . TEMPLE LANG, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER, M . CERVINO, JEAN MONNET BUILDING, KIRCHBERG,
DEFENDANT,
SUPPORTED BY
THE FRENCH REPUBLIC, REPRESENTED BY N . MUSEUX, ACTING AS AGENT, AND A . CARNELUTTI, ACTING AS ASSISTANT AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE FRENCH EMBASSY, 2 RUE BERTHOLET,
INTERVENER,
Subject of the case
APPLICATION FOR :
( A ) A REVIEW BY THE COURT UNDER ARTICLE 173 OF THE EEC TREATY OF THE LEGALITY OF ARTICLE 1 ( B ) OF COMMISSION DECISION NO 79/670/EEC OF 6 JULY 1979 ( OJ L 199, P . 31 ) WHICH PROVIDES FOR THE PRODUCTION BY THE APPLICANT, FOR EXAMINATION BY THE COMMISSION, OF CERTAIN DOCUMENTS FOR WHICH THE APPLICANT CLAIMS LEGAL PRIVILEGE ; AND
( B)A DECLARATION UNDER ARTICLE 174 OF THE EEC TREATY THAT ARTICLE 1 ( B ) OF THE DECISION OF 6 JULY 1979 IS VOID ; ALTERNATIVELY, A DECLARATION THAT IT IS VOID IN SO FAR AS IT REQUIRES THE APPLICANT TO PRODUCE FOR EXAMINATION BY THE COMMISSION THE WHOLE OF EACH OF THOSE DOCUMENTS .
Grounds
1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 4 OCTOBER 1979 AUSTRALIAN MINING & SMELTING EUROPE LIMITED ( HEREINAFTER REFERRED TO AS ' ' AM & S EUROPE ' ' ), WHICH IS BASED IN THE UNITED KINGDOM, INSTITUTED PROCEEDINGS PURSUANT TO THE SECOND PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY TO HAVE ARTICLE 1 ( B ) OF AN INDIVIDUAL DECISION NOTIFIED TO IT, NAMELY COMMISSION DECISION NO 79/760/EEC OF 6 JULY 1979 ( OJ L 199, P . 31 ), DECLARED VOID . THAT PROVISION REQUIRED THE APPLICANT TO PRODUCE FOR EXAMINATION BY OFFICERS OF THE COMMISSION CHARGED WITH CARRYING OUT AN INVESTIGATION ALL THE DOCUMENTS FOR WHICH LEGAL PRIVILEGE WAS CLAIMED, AS LISTED IN THE APPENDIX TO AM & S EUROPE ' S LETTER OF 26 MARCH 1979 TO THE COMMISSION .
2 THE APPLICATION IS BASED ON THE SUBMISSION THAT IN ALL THE MEMBER STATES WRITTEN COMMUNICATIONS BETWEEN LAWYER AND CLIENT ARE PROTECTED BY VIRTUE OF A PRINCIPLE COMMON TO ALL THOSE STATES, ALTHOUGH THE SCOPE OF THAT PROTECTION AND THE MEANS OF SECURING IT VARY FROM ONE COUNTRY TO ANOTHER . ACCORDING TO THE APPLICANT, IT FOLLOWS FROM THAT PRINCIPLE WHICH, IN ITS VIEW, ALSO APPLIES ' ' WITHIN POSSIBLE LIMITS ' '
IN COMMUNITY LAW, THAT THE COMMISSION MAY NOT WHEN UNDERTAKING AN INVESTIGATION PURSUANT TO ARTICLE 14 ( 3 ) OF REGULATION NO 17 OF THE COUNCIL OF 6 FEBRUARY 1962 ( OJ, ENGLISH SPECIAL EDITION 1959-1962, P . 87 ), CLAIM PRODUCTION, AT LEAST IN THEIR ENTIRETY, OF WRITTEN COMMUNICATIONS BETWEEN LAWYER AND CLIENT IF THE UNDERTAKING CLAIMS PROTECTION AND
TAKES ' ' REASONABLE STEPS TO SATISFY THE COMMISSION THAT THE PROTECTION IS PROPERLY CLAIMED ' '
ON THE GROUND THAT THE DOCUMENTS IN QUESTION ARE IN FACT COVERED BY LEGAL PRIVILEGE .
3 ON THE BASIS OF THAT PREMISE THE APPLICANT CONTENDS THAT IT IS A DENIAL OF THE PRINCIPLE OF CONFIDENTIALITY TO PERMIT AN AUTHORITY SEEKING INFORMATION OR UNDERTAKING AN INVESTIGATION, SUCH AS THE COMMISSION IN THIS INSTANCE, AGAINST WHICH THE PRINCIPLE OF PROTECTION IS RELIED UPON, TO INSPECT PROTECTED DOCUMENTS IN BREACH OF THEIR CONFIDENTIAL NATURE . HOWEVER, IT CONCEDES THAT ' ' THE COMMISSION HAS A PRIMA FACIE RIGHT TO SEE THE DOCUMENTS . . . IN THE POSSESSION OF AN UNDERTAKING ' '
BY VIRTUE OF ARTICLE 14 OF REGULATION NO 17, AND THAT BY VIRTUE OF THAT RIGHT ' ' IT IS STILL THE COMMISSION THAT TAKES THE DECISION WHETHER THE DOCUMENTS ARE PROTECTED OR NOT, BUT ON THE BASIS OF A DESCRIPTION OF THE DOCUMENTS ' '
AND NOT ON THE BASIS OF AN EXAMINATION OF THE WHOLE OF EACH DOCUMENT BY ITS INSPECTORS .
4 IN THAT RESPECT THE APPLICANT ACCEPTS THAT INITIALLY THE UNDERTAKING CLAIMING PROTECTION MUST PROVIDE THE COMMISSION WITH SUFFICIENT MATERIAL ON WHICH TO BASE AN ASSESSMENT : FOR EXAMPLE, THE UNDERTAKING MAY PROVIDE A DESCRIPTION OF THE DOCUMENTS AND SHOW THE COMMISSION ' S INSPECTORS ' ' PARTS OF THE DOCUMENTS ' ', WITHOUT DISCLOSING THE CONTENTS FOR WHICH PROTECTION IS CLAIMED, IN ORDER TO SATISFY THE COMMISSION THAT THE DOCUMENTS ARE IN FACT PROTECTED . SHOULD THE COMMISSION REMAIN UNSATISFIED AS TO THE CONFIDENTIAL NATURE OF THE DOCUMENTS IN QUESTION THE UNDERTAKING WOULD BE OBLIGED TO PERMIT ' ' INSPECTION BY AN INDEPENDENT THIRD PARTY WHO WILL VERIFY THE DESCRIPTION OF THE CONTENTS OF THE DOCUMENTS ' ' .
5 THE CONTESTED DECISION, BASED ON THE PRINCIPLE THAT IT IS FOR THE COMMISSION TO DETERMINE WHETHER A GIVEN DOCUMENT SHOULD BE USED OR NOT, REQUIRES AM & S EUROPE TO ALLOW THE COMMISSION ' S AUTHORIZED INSPECTORS TO EXAMINE THE DOCUMENTS IN QUESTION IN THEIR ENTIRETY . CLAIMING THAT THOSE DOCUMENTS SATISFY THE CONDITIONS FOR LEGAL PROTECTION AS DESCRIBED ABOVE, THE APPLICANT HAS REQUESTED THE COURT TO DECLARE ARTICLE 1 ( B ) OF THE ABOVE-MENTIONED DECISION VOID, OR, ALTERNATIVELY, TO DECLARE IT VOID IN SO FAR AS IT REQUIRES THE DISCLOSURE TO THE COMMISSION ' S INSPECTOR OF THE WHOLE OF EACH OF THE
DOCUMENTS FOR WHICH THE APPLICANT CLAIMS PROTECTION ON THE GROUNDS OF LEGAL CONFIDENCE .
6 THE UNITED KINGDOM, INTERVENING, ESSENTIALLY SUPPORTS THE ARGUMENT PUT FORWARD BY THE APPLICANT, AND MAINTAINS THAT THE PRINCIPLE OF LEGAL PROTECTION OF WRITTEN COMMUNICATIONS BETWEEN LAWYER AND CLIENT IS RECOGNIZED AS SUCH IN THE VARIOUS COUNTRIES OF THE COMMUNITY, EVEN THOUGH THERE IS NO SINGLE, HARMONIZED CONCEPT THE BOUNDARIES OF WHICH DO NOT VARY . IT ACCEPTS THAT THE CONCEPT MAY BE THE SUBJECT OF DIFFERING APPROACHES IN THE VARIOUS MEMBER STATES .
7 AS TO THE MOST SUITABLE PROCEDURE FOR RESOLVING DISPUTES WHICH MIGHT ARISE BETWEEN THE UNDERTAKING AND THE COMMISSION AS TO WHETHER CERTAIN DOCUMENTS ARE OF A CONFIDENTIAL NATURE OR NOT, THE UNITED KINGDOM PROPOSES THAT IF THE COMMISSION ' S INSPECTOR IS NOT SATISFIED BY THE EVIDENCE SUPPLIED BY THE UNDERTAKING, AN INDEPENDENT EXPERT SHOULD BE CONSULTED, AND, SHOULD THE DISPUTE NOT BE RESOLVED, THE MATTER SHOULD BE BROUGHT BEFORE THE COURT OF JUSTICE BY THE PARTY CONCERNED FOLLOWING THE ADOPTION BY THE COMMISSION OF A DECISION UNDER REGULATION NO 17 .
8 THE VIEW TAKEN BY THE CONSULTATIVE COMMITTEE OF THE BARS AND LAW SOCIETIES OF THE EUROPEAN COMMUNITY ( HEREINAFTER REFERRED TO AS ' ' THE CONSULTATIVE COMMITTEE ' ' ), WHICH HAS ALSO INTERVENED IN SUPPORT OF THE APPLICANT ' S CONCLUSIONS, IS THAT A RIGHT OF CONFIDENTIAL COMMUNICATION BETWEEN LAWYER AND CLIENT ( IN BOTH DIRECTIONS ) IS RECOGNIZED AS A FUNDAMENTAL, CONSTITUTIONAL OR HUMAN RIGHT, ACCESSORY OR COMPLEMENTARY TO OTHER SUCH RIGHTS WHICH ARE EXPRESSLY RECOGNIZED, AND THAT AS SUCH THAT RIGHT SHOULD BE RECOGNIZED AND APPLIED AS PART OF COMMUNITY LAW . AFTER POINTING OUT THAT THE CONCEPT IS NOT A STATIC ONE, BUT IS CONTINUALLY EVOLVING, THE CONSULTATIVE COMMITTEE CONCLUDES THAT IF THE UNDERTAKING AND THE COMMISSION CANNOT AGREE AS TO WHETHER A DOCUMENT IS OF A CONFIDENTIAL NATURE OR NOT, THE MOST APPROPRIATE PROCEDURE WOULD BE TO HAVE RECOURSE TO AN EXPERT ' S REPORT, OR TO ARBITRATION . ASSUMING, MOREOVER, THAT THE COURT IS THE SOLE TRIBUNAL WITH JURISDICTION TO SETTLE SUCH A DISPUTE IT OUGHT IN THAT CASE TO BE NECESSARY FOR IT ONLY TO DETERMINE WHETHER OR NOT THE CONTESTED DOCUMENTS ARE OF A CONFIDENTIAL NATURE ON THE BASIS OF AN EXPERT ' S REPORT OBTAINED PURSUANT TO AN ORDER UNDER ARTICLE 49 OF THE RULES OF PROCEDURE .
9 TO ALL THOSE ARGUMENTS THE COMMISSION REPLIES THAT EVEN IF THERE EXISTS IN COMMUNITY LAW A GENERAL PRINCIPLE PROTECTING CONFIDENTIAL COMMUNICATIONS BETWEEN LAWYER AND CLIENT, THE EXTENT OF SUCH PROTECTION IS NOT TO BE DEFINED IN GENERAL AND ABSTRACT TERMS, BUT MUST BE ESTABLISHED IN THE LIGHT OF THE SPECIAL FEATURES OF THE RELEVANT COMMUNITY RULES, HAVING REGARD TO THEIR WORDING AND STRUCTURE, AND TO THE NEEDS WHICH THEY ARE DESIGNED TO SERVE .
10 THE COMMISSION CONCLUDES THAT, ON A CORRECT CONSTRUCTION OF ARTICLE 14 OF REGULATION NO 17, THE PRINCIPLE ON WHICH THE APPLICANT RELIES CANNOT APPLY TO DOCUMENTS THE PRODUCTION OF WHICH IS REQUIRED IN THE COURSE OF AN INVESTIGATION WHICH HAS BEEN ORDERED UNDER THAT ARTICLE, INCLUDING WRITTEN COMMUNICATIONS BETWEEN THE UNDERTAKING CONCERNED AND ITS LAWYERS .
11 THE APPLICANT ' S ARGUMENT IS, THE COMMISSION MAINTAINS, ALL THE MORE UNACCEPTABLE INASMUCH AS IN PRACTICAL TERMS IT OFFERS NO EFFECTIVE MEANS WHEREBY THE INSPECTORS MAY BE ASSURED OF THE TRUE CONTENT AND NATURE OF THE CONTESTED DOCUMENTS . ON THE CONTRARY, THE SOLUTIONS WHICH THE APPLICANT PROPOSES WOULD HAVE THE EFFECT, PARTICULARLY IN VIEW OF THE PROTRACTED NATURE OF ANY ARBITRATION PROCEDURE ( EVEN ASSUMING THAT SUCH A PROCEDURE WERE PERMISSIBLE IN LAW ) OF DELAYING CONSIDERABLY, OR EVEN OF NULLIFYING, THE COMMISSION ' S EFFORTS TO BRING TO LIGHT INFRINGEMENTS OF ARTICLES 85 AND 86 OF THE TREATY, THEREBY FRUSTRATING THE ESSENTIAL AIMS OF REGULATION NO 17 .
12 THE GOVERNMENT OF THE FRENCH REPUBLIC, INTERVENING IN SUPPORT OF THE CONCLUSIONS OF THE COMMISSION, OBSERVES THAT AS YET COMMUNITY LAW DOES NOT CONTAIN ANY PROVISION FOR THE PROTECTION OF DOCUMENTS EXCHANGED BETWEEN A LEGAL ADVISER AND HIS CLIENT . THEREFORE, IT CONCLUDES, THE COMMISSION MUST BE ALLOWED TO EXERCISE ITS POWERS UNDER ARTICLE 14 OF REGULATION NO 17 WITHOUT HAVING TO ENCOUNTER THE OBJECTION THAT THE DOCUMENTS WHOSE DISCLOSURE IT CONSIDERS NECESSARY IN ORDER TO CARRY OUT THE DUTIES ASSIGNED TO IT BY THAT REGULATION ARE CONFIDENTIAL . TO PERMIT THE LEGAL ADVISER AND THE UNDERTAKING SUBJECT TO A PROCEEDING IN A MATTER CONCERNING COMPETITION TO BE THE ARBITERS OF THE QUESTION WHETHER OR NOT A DOCUMENT IS PROTECTED WOULD, IN THE OPINION OF THE FRENCH GOVERNMENT, NOT BE COMPATIBLE WITH COMMUNITY LAW AND WOULD INEVITABLY CREATE GRAVE INCONSISTENCIES IN THE APPLICATION OF THE RULES GOVERNING COMPETITION .
13 IT IS APPARENT FROM THE APPLICATION, AS WELL AS FROM THE LEGAL BASIS OF THE CONTESTED DECISION, THAT THE DISPUTE IN THIS CASE IS ESSENTIALLY CONCERNED WITH THE INTERPRETATION OF ARTICLE 14 OF REGULATION NO 17 OF THE COUNCIL OF 6 FEBRUARY 1962 FOR THE PURPOSE OF DETERMINING WHAT LIMITS, IF ANY, ARE IMPOSED UPON THE COMMISSION ' S EXERCISE OF ITS POWERS OF INVESTIGATION UNDER THAT PROVISION BY VIRTUE OF THE PROTECTION AFFORDED BY THE LAW TO THE CONFIDENTIALITY OF WRITTEN COMMUNICATIONS BETWEEN LAWYER AND CLIENT .
14 ONCE THE EXISTENCE OF SUCH PROTECTION UNDER COMMUNITY LAW HAS BEEN CONFIRMED, AND THE CONDITIONS GOVERNING ITS APPLICATION HAVE BEEN DEFINED, IT MUST BE DETERMINED WHICH OF THE DOCUMENTS REFERRED TO IN ARTICLE 1 ( B ) OF THE CONTESTED DECISION MAY POSSIBLY BE CONSIDERED AS CONFIDENTIAL AND THEREFORE BEYOND THE COMMISSION ' S POWERS OF INVESTIGATION . SINCE SOME OF THOSE DOCUMENTS HAVE IN THE MEANTIME BEEN PRODUCED TO THE COMMISSION BY THE APPLICANT OF ITS OWN VOLITION, THE DOCUMENTS TO BE CONSIDERED NOW ARE THOSE WHICH WERE LODGED IN A SEALED ENVELOPE AT THE COURT REGISTRY ON 9 MARCH 1981, PURSUANT TO THE COURT ' S ORDER OF 4 FEBRUARY 1981 RE-OPENING THE ORAL PROCEDURE IN THIS CASE .
( A ) THE INTERPRETATION OF ARTICLE 14 OF REGULATION NO 17
15 THE PURPOSE OF REGULATION NO 17 OF THE COUNCIL WHICH WAS ADOPTED PURSUANT TO THE FIRST SUBPARAGRAPH OF ARTICLE 87 ( 1 ) OF THE TREATY, IS, ACCORDING TO PARAGRAPH ( 2 ) ( A ) AND ( B ) OF THAT ARTICLE, ' ' TO ENSURE COMPLIANCE WITH THE PROHIBITIONS LAID DOWN IN ARTICLE 85 ( 1 ) AND IN ARTICLE 86 ' '
OF THE TREATY AND ' ' TO LAY DOWN DETAILED RULES FOR THE APPLICATION OF ARTICLE 85 ( 3 ) ' ' . THE REGULATION IS THUS INTENDED TO ENSURE THAT THE AIM STATED IN ARTICLE 3 ( F ) OF THE TREATY IS ACHIEVED . TO THAT END IT CONFERS ON THE COMMISSION WIDE POWERS OF INVESTIGATION AND OF OBTAINING INFORMATION BY PROVIDING IN THE EIGHTH RECITAL IN ITS PREAMBLE THAT THE COMMISSION MUST BE EMPOWERED, THROUGHOUT THE COMMON MARKET, TO REQUIRE SUCH INFORMATION TO BE SUPPLIED AND TO UNDERTAKE SUCH INVESTIGATIONS ' ' AS ARE NECESSARY ' '
TO BRING TO LIGHT INFRINGEMENTS OF ARTICLES 85 AND 86 OF THE TREATY .
16 IN ARTICLES 11 AND 14 OF THE REGULATION, THEREFORE, IT IS PROVIDED THAT THE COMMISSION MAY OBTAIN ' ' INFORMATION ' '
AND UNDERTAKE THE ' ' NECESSARY ' '
INVESTIGATIONS, FOR THE PURPOSE OF PROCEEDINGS IN RESPECT OF INFRINGEMENTS OF THE RULES GOVERNING COMPETITION . ARTICLE 14 ( 1 ) IN PARTICULAR EMPOWERS THE COMMISSION TO REQUIRE PRODUCTION OF BUSINESS RECORDS, THAT IS TO SAY,
DOCUMENTS CONCERNING THE MARKET ACTIVITIES OF THE UNDERTAKING, IN PARTICULAR AS REGARDS COMPLIANCE WITH THOSE RULES . WRITTEN COMMUNICATIONS BETWEEN LAWYER AND CLIENT FALL, IN SO FAR AS THEY HAVE A BEARING ON SUCH ACTIVITIES, WITHIN THE CATEGORY OF DOCUMENTS REFERRED TO IN ARTICLES 11 AND 14 .
17 FURTHERMORE, SINCE THE DOCUMENTS WHICH THE COMMISSION MAY DEMAND ARE, AS ARTICLE 14 ( 1 ) CONFIRMS, THOSE WHOSE DISCLOSURE IT CONSIDERS ' ' NECESSARY ' '
IN ORDER THAT IT MAY BRING TO LIGHT AN INFRINGEMENT OF THE TREATY RULES ON COMPETITION, IT IS IN PRINCIPLE FOR THE COMMISSION ITSELF, AND NOT THE UNDERTAKING CONCERNED OR A THIRD PARTY, WHETHER AN EXPERT OR AN ARBITRATOR, TO DECIDE WHETHER OR NOT A DOCUMENT MUST BE PRODUCED TO IT .
( B ) APPLICABILITY OF THE PROTECTION OF CONFIDENTIALITY IN COMMUNITY LAW
18 HOWEVER, THE ABOVE RULES DO NOT EXCLUDE THE POSSIBILITY OF RECOGNIZING, SUBJECT TO CERTAIN CONDITIONS, THAT CERTAIN BUSINESS RECORDS ARE OF A CONFIDENTIAL NATURE . COMMUNITY LAW, WHICH DERIVES FROM NOT ONLY THE ECONOMIC BUT ALSO THE LEGAL INTERPENETRATION OF THE MEMBER STATES, MUST TAKE INTO ACCOUNT THE PRINCIPLES AND CONCEPTS COMMON TO THE LAWS OF THOSE STATES CONCERNING THE OBSERVANCE OF CONFIDENTIALITY, IN PARTICULAR, AS REGARDS CERTAIN COMMUNICATIONS BETWEEN LAWYER AND CLIENT . THAT CONFIDENTIALITY SERVES THE REQUIREMENTS, THE IMPORTANCE OF WHICH IS RECOGNIZED IN ALL OF THE MEMBER STATES, THAT ANY PERSON MUST BE ABLE, WITHOUT CONSTRAINT, TO CONSULT A LAWYER WHOSE PROFESSION ENTAILS THE GIVING OF INDEPENDENT LEGAL ADVICE TO ALL THOSE IN NEED OF IT .
19 AS FAR AS THE PROTECTION OF WRITTEN COMMUNICATIONS BETWEEN LAWYER AND CLIENT IS CONCERNED, IT IS APPARENT FROM THE LEGAL SYSTEMS OF THE MEMBER STATES THAT, ALTHOUGH THE PRINCIPLE OF SUCH PROTECTION IS GENERALLY RECOGNIZED, ITS SCOPE AND THE CRITERIA FOR APPLYING IT VARY, AS HAS, INDEED, BEEN CONCEDED BOTH BY THE APPLICANT AND BY THE PARTIES WHO HAVE INTERVENED IN SUPPORT OF ITS CONCLUSIONS .
20 WHILST IN SOME OF THE MEMBER STATES THE PROTECTION AGAINST DISCLOSURE AFFORDED TO WRITTEN COMMUNICATIONS BETWEEN LAWYER AND CLIENT IS BASED PRINCIPALLY ON A RECOGNITION OF THE VERY NATURE OF THE LEGAL PROFESSION, INASMUCH
AS IT CONTRIBUTES TOWARDS THE MAINTENANCE OF THE RULE OF LAW, IN OTHER MEMBER STATES THE SAME PROTECTION IS JUSTIFIED BY THE MORE SPECIFIC REQUIREMENT ( WHICH, MOREOVER, IS ALSO RECOGNIZED IN THE FIRST-MENTIONED STATES ) THAT THE RIGHTS OF THE DEFENCE MUST BE RESPECTED .
21 APART FROM THESE DIFFERENCES, HOWEVER, THERE ARE TO BE FOUND IN THE NATIONAL LAWS OF THE MEMBER STATES COMMON CRITERIA INASMUCH AS THOSE LAWS PROTECT, IN SIMILAR CIRCUMSTANCES, THE CONFIDENTIALITY OF WRITTEN COMMUNICATIONS BETWEEN LAWYER AND CLIENT PROVIDED THAT, ON THE ONE HAND, SUCH COMMUNICATIONS ARE MADE FOR THE PURPOSES AND IN THE INTERESTS OF THE CLIENT ' S RIGHTS OF DEFENCE AND, ON THE OTHER HAND, THEY EMANATE FROM INDEPENDENT LAWYERS, THAT IS TO SAY, LAWYERS WHO ARE NOT BOUND TO THE CLIENT BY A RELATIONSHIP OF EMPLOYMENT .
22 VIEWED IN THAT CONTEXT REGULATION NO 17 MUST BE INTERPRETED AS PROTECTING, IN ITS TURN, THE CONFIDENTIALITY OF WRITTEN COMMUNICATIONS BETWEEN LAWYER AND CLIENT SUBJECT TO THOSE TWO CONDITIONS, AND THUS INCORPORATING SUCH ELEMENTS OF THAT PROTECTION AS ARE COMMON TO THE LAWS OF THE MEMBER STATES .
23 AS FAR AS THE FIRST OF THOSE TWO CONDITIONS IS CONCERNED, IN REGULATION NO 17 ITSELF, IN PARTICULAR IN THE ELEVENTH RECITAL IN ITS PREAMBLE AND IN THE PROVISIONS CONTAINED IN ARTICLE 19, CARE IS TAKEN TO ENSURE THAT THE RIGHTS OF THE DEFENCE MAY BE EXERCISED TO THE FULL, AND THE PROTECTION OF THE CONFIDENTIALITY OF WRITTEN COMMUNICATIONS BETWEEN LAWYER AND CLIENT IS AN ESSENTIAL COROLLARY TO THOSE RIGHTS . IN THOSE CIRCUMSTANCES, SUCH PROTECTION MUST, IF IT IS TO BE EFFECTIVE, BE RECOGNIZED AS COVERING ALL WRITTEN COMMUNICATIONS EXCHANGED AFTER THE INITIATION OF THE ADMINISTRATIVE PROCEDURE UNDER REGULATION NO 17 WHICH MAY LEAD TO A DECISION ON THE APPLICATION OF ARTICLES 85 AND 86 OF THE TREATY OR TO A DECISION IMPOSING A PECUNIARY SANCTION ON THE UNDERTAKING . IT MUST ALSO BE POSSIBLE TO EXTEND IT TO EARLIER WRITTEN COMMUNICATIONS WHICH HAVE A RELATIONSHIP TO THE SUBJECT-MATTER OF THAT PROCEDURE .
24 AS REGARDS THE SECOND CONDITION, IT SHOULD BE STATED THAT THE REQUIREMENT AS TO THE POSITION AND STATUS AS AN INDEPENDENT LAWYER, WHICH MUST BE FULFILLED BY THE LEGAL ADVISER FROM WHOM THE WRITTEN COMMUNICATIONS WHICH MAY BE PROTECTED EMANATE, IS BASED ON A CONCEPTION OF THE LAWYER ' S ROLE AS COLLABORATING IN THE ADMINISTRATION OF JUSTICE BY THE COURTS AND AS BEING REQUIRED TO
PROVIDE, IN FULL INDEPENDENCE, AND IN THE OVERRIDING INTERESTS OF THAT CAUSE, SUCH LEGAL ASSISTANCE AS THE CLIENT NEEDS . THE COUNTERPART OF THAT PROTECTION LIES IN THE RULES OF PROFESSIONAL ETHICS AND DISCIPLINE WHICH ARE LAID DOWN AND ENFORCED IN THE GENERAL INTEREST BY INSTITUTIONS ENDOWED WITH THE REQUISITE POWERS FOR THAT PURPOSE . SUCH A CONCEPTION REFLECTS THE LEGAL TRADITIONS COMMON TO THE MEMBER STATES AND IS ALSO TO BE FOUND IN LEGAL ORDER OF THE COMMUNITY, AS IS DEMONSTRATED BY ARTICLE 17 OF THE PROTOCOLS ON THE STATUTES OF THE COURT OF JUSTICE OF THE EEC AND THE EAEC, AND ALSO BY ARTICLE 20 OF THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE ECSC .
25 HAVING REGARD TO THE PRINCIPLES OF THE TREATY CONCERNING FREEDOM OF ESTABLISHMENT AND THE FREEDOM TO PROVIDE SERVICES THE PROTECTION THUS AFFORDED BY COMMUNITY LAW, IN PARTICULAR IN THE CONTEXT OF REGULATION NO 17, TO WRITTEN COMMUNICATIONS BETWEEN LAWYER AND CLIENT MUST APPLY WITHOUT DISTINCTION TO ANY LAWYER ENTITLED TO PRACTISE HIS PROFESSION IN ONE OF THE MEMBER STATES, REGARDLESS OF THE MEMBER STATE IN WHICH THE CLIENT LIVES .
26 SUCH PROTECTION MAY NOT BE EXTENDED BEYOND THOSE LIMITS, WHICH ARE DETERMINED BY THE SCOPE OF THE COMMON RULES ON THE EXERCISE OF THE LEGAL PROFESSION AS LAID DOWN IN COUNCIL DIRECTIVE 77/249/EEC OF 22 MARCH 1977 ( OJ L 78, P . 17 ), WHICH IS BASED IN ITS TURN ON THE MUTUAL RECOGNITION BY ALL THE MEMBER STATES OF THE NATIONAL LEGAL CONCEPTS OF EACH OF THEM ON THIS SUBJECT .
27 IN VIEW OF ALL THESE FACTORS IT MUST THEREFORE BE CONCLUDED THAT ALTHOUGH REGULATION NO 17, AND IN PARTICULAR ARTICLE 14 THEREOF, INTERPRETED IN THE LIGHT OF ITS WORDING, STRUCTURE AND AIMS, AND HAVING REGARD TO THE LAWS OF THE MEMBER STATES, EMPOWERS THE COMMISSION TO REQUIRE, IN THE COURSE OF AN INVESTIGATION WITHIN THE MEANING OF THAT ARTICLE, PRODUCTION OF THE BUSINESS DOCUMENTS THE DISCLOSURE OF WHICH IT CONSIDERS NECESSARY, INCLUDING WRITTEN COMMUNICATIONS BETWEEN LAWYER AND CLIENT, FOR PROCEEDINGS IN RESPECT OF ANY INFRINGEMENTS OF ARTICLES 85 AND 86 OF THE TREATY, THAT POWER IS, HOWEVER, SUBJECT TO A RESTRICTION IMPOSED BY THE NEED TO PROTECT CONFIDENTIALITY, ON THE CONDITIONS DEFINED ABOVE, AND PROVIDED THAT THE COMMUNICATIONS IN QUESTION ARE EXCHANGED BETWEEN AN INDEPENDENT LAWYER, THAT IS TO SAY ONE WHO IS NOT BOUND TO HIS CLIENT BY A RELATIONSHIP OF EMPLOYMENT, AND HIS CLIENT .
28 FINALLY, IT SHOULD BE REMARKED THAT THE PRINCIPLE OF CONFIDENTIALITY DOES NOT PREVENT A LAWYER ' S CLIENT FROM DISCLOSING THE WRITTEN COMMUNICATIONS BETWEEN THEM IF HE CONSIDERS THAT IT IS IN HIS INTERESTS TO DO SO .
( C ) THE PROCEDURES RELATING TO THE APPLICATION OF THE PRINCIPLE OF CONFIDENTIALITY
29 IF AN UNDERTAKING WHICH IS THE SUBJECT OF AN INVESTIGATION UNDER ARTICLE 14 OF REGULATION NO 17 REFUSES, ON THE GROUND THAT IT IS ENTITLED TO PROTECTION OF THE CONFIDENTIALITY OF INFORMATION, TO PRODUCE, AMONG THE BUSINESS RECORDS DEMANDED BY THE COMMISSION, WRITTEN COMMUNICATIONS BETWEEN ITSELF AND ITS LAWYER, IT MUST NEVERTHELESS PROVIDE THE COMMISSION ' S AUTHORIZED AGENTS WITH RELEVANT MATERIAL OF SUCH A NATURE AS TO DEMONSTRATE THAT THE COMMUNICATIONS FULFIL THE CONDITIONS FOR BEING GRANTED LEGAL PROTECTION AS DEFINED ABOVE, ALTHOUGH IT IS NOT BOUND TO REVEAL THE CONTENTS OF THE COMMUNICATIONS IN QUESTION .
30 WHERE THE COMMISSION IS NOT SATISFIED THAT SUCH EVIDENCE HAS BEEN SUPPLIED, THE APPRAISAL OF THOSE CONDITIONS IS NOT A MATTER WHICH MAY BE LEFT TO AN ARBITRATOR OR TO A NATIONAL AUTHORITY . SINCE THIS IS A MATTER INVOLVING AN APPRAISAL AND A DECISION WHICH AFFECT THE CONDITIONS UNDER WHICH THE COMMISSION MAY ACT IN A FIELD AS VITAL TO THE FUNCTIONING OF THE COMMON MARKET AS THAT OF COMPLIANCE WITH THE RULES ON COMPETITION, THE SOLUTION OF DISPUTES AS TO THE APPLICATION OF THE PROTECTION OF THE CONFIDENTIALITY OF WRITTEN COMMUNICATIONS BETWEEN LAWYER AND CLIENT MAY BE SOUGHT ONLY AT COMMUNITY LEVEL .
31 IN THAT CASE IT IS FOR THE COMMISSION TO ORDER, PURSUANT TO ARTICLE 14 ( 3 ) OF REGULATION NO 17, PRODUCTION OF THE COMMUNICATIONS IN QUESTION AND, IF NECESSARY, TO IMPOSE ON THE UNDERTAKING FINES OR PERIODIC PENALTY PAYMENTS UNDER THAT REGULATION AS A PENALTY FOR THE UNDERTAKING ' S REFUSAL EITHER TO SUPPLY SUCH ADDITIONAL EVIDENCE AS THE COMMISSION CONSIDERS NECESSARY OR TO PRODUCE THE COMMUNICATIONS IN QUESTION WHOSE CONFIDENTIALITY, IN THE COMMISSION ' S VIEW, IS NOT PROTECTED IN LAW .
32 THE FACT THAT BY VIRTUE OF ARTICLE 185 OF THE EEC TREATY ANY ACTION BROUGHT BY THE UNDERTAKING CONCERNED AGAINST SUCH DECISIONS DOES NOT HAVE SUSPENSORY EFFECT PROVIDES AN ANSWER TO THE COMMISSION ' S CONCERN AS TO THE EFFECT OF THE TIME TAKEN BY THE PROCEDURE BEFORE THE COURT ON THE EFFICACY OF THE SUPERVISION WHICH THE COMMISSION IS CALLED UPON TO EXERCISE IN REGARD TO COMPLIANCE WITH THE TREATY RULES ON COMPETITION, WHILST ON THE OTHER HAND THE INTERESTS OF THE UNDERTAKING CONCERNED ARE SAFEGUARDED BY THE POSSIBILITY WHICH EXISTS UNDER ARTICLES 185 AND 186 OF THE TREATY, AS WELL AS UNDER ARTICLE 83 OF THE RULES OF PROCEDURE OF THE COURT, OF OBTAINING AN ORDER SUSPENDING THE APPLICATION OF THE DECISION WHICH HAS BEEN TAKEN, OR ANY OTHER INTERIM MEASURE .
( D ) THE CONFIDENTIAL NATURE OF THE DOCUMENTS AT ISSUE
33 IT IS APPARENT FROM THE DOCUMENTS WHICH THE APPLICANT LODGED AT THE COURT ON 9 MARCH 1981 THAT ALMOST ALL THE COMMUNICATIONS WHICH THEY INCLUDE WERE MADE OR ARE CONNECTED WITH LEGAL OPINIONS WHICH WERE GIVEN TOWARDS THE END OF 1972 AND DURING THE FIRST HALF OF 1973 .
34 IT APPEARS THAT THE COMMUNICATIONS IN QUESTION WERE DRAWN UP DURING THE PERIOD PRECEDING, AND IMMEDIATELY FOLLOWING, THE ACCESSION OF THE UNITED KINGDOM TO THE COMMUNITY, AND THAT THEY ARE PRINCIPALLY CONCERNED WITH HOW FAR IT MIGHT BE POSSIBLE TO AVOID CONFLICT BETWEEN THE APPLICANT AND THE COMMUNITY AUTHORITES ON THE APPLICANT ' S POSITION, IN PARTICULAR WITH REGARD TO THE COMMUNITY PROVISIONS ON COMPETITION . IN SPITE OF THE TIME WHICH ELAPSED BETWEEN THE SAID COMMUNICATIONS AND THE INITIATION OF A PROCEDURE, THOSE CIRCUMSTANCES ARE SUFFICIENT TO JUSTIFY CONSIDERING THE COMMUNICATIONS AS FALLING WITHIN THE CONTEXT OF THE RIGHTS OF THE DEFENCE AND THE LAWYER ' S SPECIFIC DUTIES IN THAT CONNECTION . THEY MUST THEREFORE BE PROTECTED FROM DISCLOSURE .
35 IN VIEW OF THAT RELATIONSHIP AND IN THE LIGHT OF THE FOREGOING CONSIDERATIONS THE WRITTEN COMMUNICATIONS AT ISSUE MUST ACCORDINGLY BE CONSIDERED, IN SO FAR AS THEY EMANATE FROM AN INDEPENDENT LAWYER ENTITLED TO PRACTISE HIS PROFESSION IN A MEMBER STATE, AS CONFIDENTIAL AND ON THAT GROUND BEYOND THE COMMISSION ' S POWER OF INVESTIGATION UNDER ARTICLE 14 OF REGULATION NO 17 .
36 HAVING REGARD TO THE PARTICULAR NATURE OF THOSE COMMUNICATIONS ARTICLE 1 ( B ) OF THE CONTESTED DECISION MUST BE DECLARED VOID IN SO FAR AS IT REQUIRES THE APPLICANT TO PRODUCE THE DOCUMENTS MENTIONED IN THE APPENDIX TO ITS LETTER TO
THE COMMISSION OF 26 MARCH 1979 AND LISTED IN THE SCHEDULE OF DOCUMENTS LODGED AT THE COURT ON 9 MARCH 1981 UNDER NUMBERS 1 ( A ) AND ( B ), 4 ( A ) TO ( F ), 5 AND 7 .
37 NEVERTHELESS, THE APPLICATION MUST BE DISMISSED INASMUCH AS IT IS DIRECTED AGAINST THE PROVISIONS IN THE ABOVE-MENTIONED ARTICLE 1 ( B ) RELATING TO DOCUMENTS OTHER THAN THOSE REFERRED TO ABOVE, WHICH ARE LIKEWISE LISTED IN THE ABOVE-MENTIONED APPENDIX AND SCHEDULE AND WHICH HAVE NOT YET BEEN PRODUCED TO THE COMMISSION .
Decision on costs
COSTS
38 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . UNDER ARTICLE 69 ( 3 ) THE COURT MAY ORDER THAT THE PARTIES BEAR THEIR OWN COSTS IN WHOLE OR IN PART WHERE EACH PARTY SUCCEEDS ON SOME AND FAILS ON OTHER HEADS OR WHERE THE CIRCUMSTANCES ARE EXCEPTIONAL .
39 SINCE THE PARTIES TO THE ACTION AND THE INTERVENERS HAVE FAILED ON SOME HEADS THEY MUST BEAR THEIR OWN COSTS .
Operative part
ON THOSE GROUNDS,
THE COURT
HEREBY :
1 . DECLARES ARTICLE 1 ( B ) OF COMMISSION DECISION NO 79/760 OF 6 JULY 1979 VOID INASMUCH AS IT REQUIRES THE APPLICANT TO PRODUCE THE DOCUMENTS WHICH ARE MENTIONED IN THE APPENDIX TO THE LETTER FROM THE APPLICANT TO THE COMMISSION OF 26 MARCH 1979 AND LISTED IN THE SCHEDULE OF DOCUMENTS LODGED AT THE COURT ON 9 MARCH 1981 UNDER NUMBERS 1 ( A ) AND ( B ), 4 ( A ) TO ( F ), 5 AND 7 ;
2 . FOR THE REST, DISMISSES THE APPLICATION ;
3 . ORDERS THE PARTIES TO THE ACTION AND THE INTERVENERS TO BEAR THEIR OWN COSTS .