Case T-253/03

Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd

v

Commission of the European Communities

(Intervention – Admission – Representative association whose object is the protection of its members)

Order of the President of the First Chamber of the Court of First Instance, 26 February 2007

Summary of the Order

Procedure – Intervention – Persons having an interest

(Statute of the Court of Justice, Arts 40, second para., and 53, first para.)

Pursuant to the second paragraph of Article 40 of the Statute of the Court of Justice, applicable to the Court of First Instance by virtue of the first paragraph of Article 53 thereof, the right to intervene in cases submitted to the Court of First Instance is open not only to the Member States and institutions of the Communities, but also to any other person establishing an interest in the result of the case.

Representative associations whose object is to protect their members in cases raising questions of principle liable to affect those members are allowed to intervene. More particularly, an association may be granted leave to intervene in a case if it represents an appreciable number of operators active in the sector concerned, its objects include that of protecting its members’ interests, the case may raise questions of principle affecting the functioning of the sector concerned and the interests of its members may therefore be affected to an appreciable extent by the judgment to be given.

An organisation which represents an appreciable number of lawyers, and the object of which in particular is to assist bar associations, law societies and their members to develop and improve the profession’s organisation and status, to assist members of the legal profession throughout the world, whether in the field of legal education or otherwise, and to develop and improve their legal services to the public must be allowed to intervene in a case raising fundamental questions concerning the confidentiality of communications between a lawyer and his client.

(see paras 14-18)

ORDER OF THE PRESIDENT OF THE FIRST CHAMBER OF THE COURT OF FIRST INSTANCE

26 February 2007 ( )

(Intervention – Admission – Representative association whose object is the protection of its members)

In Case T‑253/03,

Akzo Nobel Chemicals Ltd, established in Surrey (United Kingdom),

Akcros Chemicals Ltd, established in Surrey,

represented by C. Swaak and M. Mollica, lawyers,

applicants,

supported by

Council of Bars and Law Societies of the European Union (CCBE), established in Brussels (Belgium), represented by J. Flynn QC,

by

Algemene Raad van de Nederlandse Orde van Advocaten, established in The Hague (Netherlands), represented by O. Brouwer, lawyer,

by

European Company Lawyers Association (ECLA), established in Brussels, represented by M. Dolmans and K. Nordlander, lawyers, and J. Temple Lang, Solicitor,

and by

American Corporate Counsel Association (ACCA) – European Chapter, established in Paris (France), represented by G. Berrisch, lawyer, and D. Hull, Solicitor,

interveners,

v

Commission of the European Communities, represented initially by R. Wainwright and C. Ingen-Housz, and subsequently by R.Wainwright and F. Castillo de la Torre, acting as Agents,

defendant,

APPLICATION by the International Bar Association for leave to intervene in support of the form of order sought by the applicants in this case, which seeks annulment of Decision C(2003) 1533 final of 8 May 2003 refusing an application for legal professional privilege to be applied to certain documents seized in the course of an investigation ordered under Article 14(3) of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles [81] and [82] of the Treaty (OJ, English Special Edition 1959-1962, p. 87),

THE PRESIDENT OF THE FIRST CHAMBER OF THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES

makes the following

Order

Facts and procedure

1 On 30 January 2003, the Commission adopted Decision C(2003) 85/4 on the basis of Article 14(3) of Council Regulation No 17 of 6 February 1962: First Regulation implementing Articles [81] and [82] of the Treaty (OJ, English Special Edition 1959-1962, p. 87), ordering Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd (‘the applicants’) to submit to an investigation aimed at seeking evidence of possible anticompetitive practices (‘the decision of 30 January 2003’). On 10 February 2003, the Commission adopted Decision C(2003) 559/4, also on the basis of Article 14(3) of Regulation No 17 (‘the decision of 10 February 2003’), amending the decision of 30 January 2003.

2 On 12 and 13 February 2003, on-the-spot investigations were carried out on the basis of those decisions at the applicants’ premises in Eccles, Manchester (United Kingdom). In the course of that investigation, the Commission officials took copies of a large number of documents. During those operations, the applicants’ representatives indicated to the Commission officials that a number of documents were likely to be covered by legal professional privilege. While the documents concerned were being examined a disagreement arose as regards five documents, which were subject to two kinds of treatment. The Commission officials did not reach a definitive on-the-spot conclusion as to the protection to be afforded to two documents. Therefore, they took copies of them and placed them in a sealed envelope, which they took away with them at the end of their investigation. As regards the three other documents at issue, the Commission official responsible for the investigation took the view that they were not covered by legal professional privilege and therefore took copies and added them to the file without placing them in a separate sealed envelope.

3 By application lodged at the Court Registry on 11 April 2003, the applicants brought an action seeking, essentially, annulment of the decision of 10 February 2003 and, so far as necessary, the decision of 30 January 2003 requiring those companies and their respective subsidiaries to submit to the investigation in question (Case T-125/03 Akzo Nobel Chemicals and Akcros Chemicals v Commission).

4 On 8 May 2003, the Commission adopted Decision C(2003) 1533 final on the basis of Article 14(3) of Regulation No 17 (‘the decision of 8 May 2003’), refusing the applicants’ request to preserve the confidentiality of the documents at issue.

5 By application lodged at the Court Registry on 4 July 2003, the applicants brought an action for annulment of the decision of 8 May 2003 on the basis of the fourth paragraph of Article 230 EC.

6 By applications lodged on 30 July, 7 and 18 August and 25 November 2003 respectively, the Council of Bars and Law Societies of the European Union (‘CCBE’), the Algemene Raad van de Nederlandse Orde van Advocaten (‘the Netherlands Bar’), the European Company Lawyers Association (‘ECLA’) and the American Corporate Counsel Association (‘ACCA’) – European Chapter applied for leave to intervene in support of the form of order sought by the applicants. By orders of the President of the Fifth Chamber of 4 November 2003 and 10 March 2004, the CCBE, the Netherlands Bar, the ECLA and the ACCA were granted leave to intervene.

7 By application lodged on 25 November 2003, the Section on Business Law of the International Bar Association applied for leave to intervene in support of the form of order sought by the applicants. By order of 28 May 2004 the Court rejected that application.

8 On 20 February 2006, the International Bar Association (‘IBA’), represented by J. Buhart, lawyer, lodged an application for leave to intervene in support of the form of order sought by the applicants.

9 In its application for leave to intervene, the IBA submits that it has a direct and specific interest in this case, and that it satisfies the conditions laid down in the case-law concerning applications for leave to intervene by associations. First, the IBA is an international association with legal personality representing a large number of operators active in the sector concerned. It is in fact the largest association in the world representing the legal profession. Second, its objectives include the protection, defence and representation of its members’ interests – of which the principle of legal professional privilege is one – if necessary before the courts, to ensure in particular that its members are able to practise their profession freely and without interference. Third, this case raises fundamental issues regarding the principle of legal professional privilege and states that the position adopted by the Court on those issues will undoubtedly affect its members at all levels – individual members, Bars and company lawyers’ associations.

10 The application for leave to intervene was notified to the parties pursuant to the first subparagraph of Article 116(1) of the Rules of Procedure of the Court of First Instance.

11 By document of 11 April 2006, the applicants submitted that the IBA had shown that it had an interest in the result of this case and asked the Court to declare its application for leave to intervene to be admissible. By separate document lodged on the same day, the applicants made an application for confidential treatment as against the IBA.

12 By document of 27 March 2006, the Commission requested the Court to reject the IBA’s application to intervene. It submits, inter alia, that the IBA’s objects, as defined by Article 1 of its Constitution, do not include either the protection of its members’ interests or their representation, as the purpose of that association simply consists in ‘assisting’ its members and ‘promoting’ the rule of law and the administration of justice. The case-law attaches great importance to the fact that the object of an association is clearly stated in its statutes (order of the Court of First Instance in Case T-253/03 Akzo Nobel Chemicals and Akcros Chemicals v Commission [2004] ECR II-1603, paragraph 20, rejecting the application for leave to intervene by the Section on Business Law of the International Bar Association, paragraph 20). The Commission also observes that the Court appears to establish a clear distinction between ‘promotion’ and ‘representation and protection’ by an association of its members’ interests. An association seeking to promote the general and collective interests of a profession does not have sufficient interest to be granted leave to intervene (order of the President of the Third Chamber of 25 June 1999 in Case T-13/99 Pfizer Animal Health v Council, not published in the ECR, paragraph 28).

13 By documents of 5 and 10 April 2006, the CCBE and the Netherlands Bar expressed support for the IBA’s application for leave to intervene. The other intervener did not raise any objections to that application.

Findings of the Court

14 Pursuant to the second paragraph of Article 40 of the Statute of the Court of Justice, applicable to the Court of First Instance by virtue of the first paragraph of Article 53 thereof, the right to intervene in cases submitted to the Court of First Instance is open not only to the Member States and institutions of the Communities, but also to any other person establishing an interest in the result of the case.

15 According to settled case-law, representative associations whose object is to protect their members in cases raising questions of principle liable to affect those members are allowed to intervene (orders of the President of the Court in Joined Cases C-151/97 P(I) and C-157/97 P(I) National Power and PowerGen [1997] ECR I-3491, paragraph 66, and in Case C-151/98 P Pharos v Commission [1998] ECR I-5441, paragraph 6). More particularly, an association may be granted leave to intervene in a case if it represents an appreciable number of operators active in the sector concerned, its objects include that of protecting its members’ interests, the case may raise questions of principle affecting the functioning of the sector concerned and the interests of its members may therefore be affected to an appreciable extent by the judgment to be given (see, to that effect, order of the Court of First Instance in Case T‑87/92 Kruidvat v Commission [1993] ECR II-1375, paragraph 14, refusing the application for leave to intervene by Yves Saint Laurent Parfums SA, and the order in Akzo Nobel Chemicals and Akcros Chemicals v Commission, cited above, paragraph 18).

16 In this case, it must be held, first of all, that the IBA is an organisation which represents an appreciable number of operators active in the sector concerned in this case. Its members include more than 20 000 individual lawyers – including approximately 3 000 in-house counsel – and also 195 Bars and numerous company lawyers’ associations – including the Institut des jurists d’entreprise.

17 Second, it is clear from the IBA’s Constitution that its objects include the protection of its members’ interests. Thus, according to Article 1(2) and (3) of the IBA’s Constitution, its object is to assist bar associations, law societies and their members to develop and improve the profession’s organisation and status, to assist members of the legal profession throughout the world, whether in the field of legal education or otherwise, and to develop and improve their legal services to the public. Contrary to the Commission’s submissions, the reference to the IBA’s objects being inter alia, to ‘assist’ its members must be understood as meaning that one of the aims of that association is to protect its members’ interests. Therefore, the cases foreseen by the provisions in question go beyond the mere promotion of general and collective interests of a profession, within the meaning of the order in Pfizer Animal Health v Council. The IBA’s Constitution covers issues likely to directly affect the specific interests of its members, such as the organisation and status of the legal profession and the provision of legal services.

18 Third, and finally, in the light of the fact that the case concerned raises fundamental issues concerning confidentiality of communications between a lawyer and his client, it must be held that the judgment to be given may significantly affect both the functioning of the sector concerned and the interests of the IBA’s members.

19 It is clear from the foregoing that the IBA has established its interest in the result of the case and, therefore, it is appropriate to admit it as an intervener pursuant to the second paragraph of Article 40 of the Statute of the Court of Justice. Since its application for leave to intervene was submitted after the expiry of the six-week period prescribed in Article 115(1) of the Rules of Procedure of the Court of First Instance, the IBA’s intervention is to be limited to the submission of observations during the oral procedure, pursuant to Article 116(6) of those rules. Therefore, the IBA will, in due course, only receive communication of the Report for the Hearing which will be drawn up in this case. There is no need, therefore, to decide the application for confidential treatment brought by the applicants as against the IBA.

On those grounds,

THE PRESIDENT OF THE FIRST CHAMBER OF THE COURT OF FIRST INSTANCE

hereby orders:

1. The International Bar Association is granted leave to intervene in Case T-253/03 in support of the form of order sought by the applicants. Pursuant to Article 116(6) of the Rules of Procedure of the Court of First Instance, the Registrar shall communicate to it in due course the Report for the Hearing, on the basis of which it may submit any observations during the oral procedure.

2. Costs are reserved.





Luxembourg, 26 February 2007.





E. Coulon J.D. Cooke