CELEX: 61979CC0155
Language: en
Date: 1981-01-20
Title: Opinion of Mr Advocate General Warner delivered on 20 January 1981. # AM & S Europe Limited v Commission of the European Communities. # Legal privilege. # Case 155/79.

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                                                J. Menens de Wilmars
Registrar                                                                     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
 ---pagebreak---                            OPINION OF MR WARNER — CASE 155/79
My Lords,                                   II — T h e b a c k g r o u n d
I —     Introductory
                                            Article 20 of Regulation No 17, which is
                                            headed "Professional secrecy", imposes
                                            on the Commission and the competent
In this action, which is brought against    authorities of the Member States, their
the Commission under Article 173 of the     officials and other sen-ants, an obligation
EEC Treaty, the applicant is an English     not to disclose information acquired by
company called AM & S Europe Limited.       them as a result of the application of the
It is a subsidiary of an Australian
                                            regulation and "of the kind covered by
company,      Australian    Mining     and
                                            the obligation of professional secrecy".
Smelting Limited. Both           companies
                                            The reference there to "professional
belong to the well-known Rio Tinto
Zinc group. A subsidiary of the applicant   secrecy" is obviously a reference to the
owns and operates a zinc smelter at         concept known in French law for
Avonmouth, near Bristol.                     instance as "le secret professionnel",
                                            which is a wide concept in the sense that
                                            it applies not only to lawyers but to
On 10 February 1978, the Member of          anyone whose occupation leads him to
the     Commission       responsible    for be entrusted which confidential infor-
competition policy ordered investigations    mation, e.g. members of the medical
to be carried out under Article 14 of       profession and government officials.
Regulation No 17 into a number of
undertakings in the zinc industry, which
were suspected of having jointly fixed       It might be suggested, though no one did
prices and conditions of sale, controlled    so in argument before us in this case,
production and shared out markets, in        that the express reference in Anicie 20 to
breach of Article 85 of the Treat)'. The     "professional secrecy" and the absence
applicant was one of those undertakings.     of any express reference to any such
                                             concept elsewhere in the regulation must
                                             be taken to mean that the authors of the
Article 14 of Regulation N o 17 is so        regulation intended to exclude the
familiar to your Lordships that I do not     application     of   any such      concept
think it necessary to read it. The Court     otherwise than in the circumstances
was recently concerned with it in Case       described in Article 20. That would
 136/79 National Panasonic (UK) Ltd v        however be, so it seems to me. a
 Commission (26 June 1980, not yet           somewhat rash application of that
reported). The questions at issue in this    unreliable maxim expressio unun esi
case are, however, different from those      exclusio alterius.
that were at issue there.
The questions here at issue relate to the    The Commission and the French
extent to which, and the manner in           Government suggested on the other hand
which, communications          between    a  that the "legislative history" of Anicie 14
 lawyer and his client may be protected      showed that the Council, when rnactinp
 from disclosure in an investigation under    Regulation No 17, had deliberated
Article 14. Before I state the facts of the   rejected the idea that any concept ol
 case and the precise nature of the          "professional secrecy" should applv in
 questions to which they give rise, it may   the context of that aniele. They relied, in
 be helpful if I say something about the     so doing, on the rejection by the Council
 background.                                 of amendments urged by the European
  1620
 ---pagebreak---                                    AM & S v COMMISSION
Parliament to the Commission's proposal       what is now Article 11 designed to give
for what became Regulation N o 17. As         effect to the criticisms it had expressed in
your Lordships know, I entertain grave        paragraph 121, and in particular to the
doubt whether it is permissible to            view that owners or representatives of
interpret a Council Regulation by             undertakings called upon to supply
reference to its "legislative history". Be    information should not be required to
that as it may, I do not think that, in this  answer incriminating questions. There
instance,    an examination       of     the  was no mention in the proposed
"legislative history" of Article 14 leads     amendments of "le secret professionnel".
to the conclusion suggested by the            The formal opinion of the Parliament,
Commission and the French Govern-             embodied       in    a   resolution    dated
ment.                                         19 October 1961, did not differ in any
                                              material respect from what had been
                                              proposed by the committee.
The Parliament's amendments had their
origin in a repon made by its Internal
Market Committee on the Commission's          It seems that, of the laws of the original
proposal (the "Deringer Report" —             Member States, only German law
European Parliament Doc. 57/1961). In         recognizes the general principle that a
paragraph 121 of that report the              person may refuse to answer incrimi-
committee voiced a number of criticisms       nating questions. That principle is of
of Articles 9 and 11 of the proposal,         course recognized in English law also. It
which became respectively Articles 11         is however distinct from the principle
and 14 of the regulation. Article 11          that safeguards the confidentiality of
of the regulation, your Lordships             communications between a lawyer and
remember, empowers the Commission to          his client. One can understand that the
request and, where necessary, to require      Council should have wished to exclude
information      from,    among      others,  from what is now Article 11 of the Regu-
"undertakings and associations of under-      lation a rule that a person should not
takings". Most of the committee's             be required to answer incriminating
criticisms had nothing to do with the         questions, for that might have defeated
present     problem.     Paragraph      121   the very purpose of the Article or at least
contained however a sentence in these         rendered it largely ineffective. But one
terms :                                       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
"En tout cas, toute personne tenue de         decided against the application of any
fournir des renseignements doit avoir le      principle protecting the confidentiality of
droit de refuser le témoignage tout            communications between lawyer and
comme le secret professionnel, par             client in the context either of Article 11
exemple des avocats et des experts-            or of Article 14.
comptables, doit être garanti."
                                               Regulation No 17 was adopted by the
When one turns to the amendments               Council on 6 February 1962. We were
 proposed by the committee (at pp. 44 to       told by the Commission that the absence
 46 of its report) one finds that in fact it   from Article 14 of any reference to
 proposed none to what is now Article 14.      communications between lawyer and
 It proposed a series of amendments to         client did not seem to have given rise to
                                                                                      1621
 ---pagebreak---                            OPINION OF MR EARNER — CASE 155/79
any difficulty in the early years of its      The Edward Report dealt with a host of
application. The Commission did not,          problems of common interest to the Bars
however, enlarge upon that, so that we        of the' Member States ranging far beyond
do not know how often Article 14 was          the particular questions with which your
invoked in those years, nor to what           Lordships are concerned in the present
extent cases then occurred in which           case. I do not propose to embark upon
Commission       officials   carrying     out an analysis of it, or even to attempt a
investigations came across communi-           summary of it. Beyond saying that it
cations of the kind in question. The          was, and still is, a remarkable feat of
Commission went on to tell us that, after     comparative law, I will confine myself to
the accession of the new Member States,       one comment on it, which is this.
the subject was raised more frequently in
discussion in professional circles and
short articles were published on it.
                                              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
In 1976 the Consultative Committee of
                                              Kingdom on the other hand, whilst the
the Bars and Law Societies of the
                                              law of Denmark should be considered
European Community (the "CCBE")
                                              separately. But — and this thought
published a report by Mr D. A. O.
                                              struck me when I first read the report in
Edward, QC, of the Scottish Bar,
                                              1976 — the report itself unconsciously
entitled    "The     Professional     Secret,
                                              demonstrates that that is a mistaken
Confidentiality and Legal Professional
                                              approach, first because of differences
Privilege in the Nine Member States of
                                              between the laws of "the original six"
the     European       Community"        (the
                                              that the report brings out and secondly
"Edward Report"). Mr Edward, who
                                              because of differences between the laws
was subsequently President of the
                                              of England and of Scotland that the
CCBE, represented that body in the
                                              report overlooks. The report was
present proceedings before us. In the
                                              however, in my opinion, right in
preparation of his repon he was advised
                                              concluding that the differences between
and assisted by distinguished members of
                                              the laws of the different countries     the
the Bars of all the countries of the
                                              Community "are differences of apr... rh
Community.
                                              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.
The title of the Edward Report is
significant. "The Professional Secret" is
of course a literal translation into
English of "le secret professionnel".         In 1977 two members of the Legal
"Confidentiality" is the name given to        Service of the Commission, Dr C. D.
the relevant concept in Scottish law,         Ehlermann, its Director-General, and Dr
whilst "Legal Professional Privilege" is      D. Oldekop, wrote a paper for the
the name given to it in English and Irish     following year's Congress of the FIDE in
law — an inaccurate name as Lord              Copenhagen. The views they expressed
Wilberforce pointed out in Waugh v            in that paper were of course their
British Railways Board [1980] AC 251, at      personal views. They could not com-
p. 531.                                       mit the Commission. Having regard,
1622
 ---pagebreak---                                  AM & S v COMMISSION
however, to the standing of Drs             extends not only to independent lawyers
Ehlermann and Oldekop, and also to the      but also to lawyers who are full-time
fact that the relevant passage in their     employees of the client).
paper is comparatively short, I propose
to cite it almost in full. They said this   Community law contains no specific and
(FIDE, Copenhagen 1978, Vol. 3, pp.         express rules relating to the protection
11.5-11.6):                                 of     legal   professional     privilege in
                                            administrative procedures Article 20
"The question whether and if so, to what    Regulation No 17/62 prohibits only
extent, communications between a            disclosure of secrets by the Commission,
lawyer and his client are or should be      but not to the Commission."
protected under Community law against
discovery by the Commission
constitutes a question of due process that  Then, after a reference to Article 32 (2)
should be mentioned in the context of a     of the Rules of Procedure of this Court,
discussion dealing with the rights of       the authors conclude:
defence with regard to the investigation
powers of the Commission. In all of the     "Considering the legal situation in the
Member Sutes the secrecy of the             Member States it seems justified to
relationship between a lawyer and his       assume that there exists a general
client enjoys legal protection against      principle     of    law,      applicable     in
discovery by administrative authorities     Community law as part of 'the law' in
and even the judiciary, although within     the sense of Art. 164 EEC Treaty (Arts
varying limits and by different methods.    31 ECSC Treaty, 136 EAEC Treaty),
These limits and methods cannot be          which, within certain limits, assures the
described in this paper."                   professional privilege, also in admin-
                                            istrative proceedings. Until now, the
The authors refer the reader instead to     protection of professional privilege has
the Edward Report, and go on:               not proved to be a particularly sensitive
                                            issue in the practice of the Commission
                                            and the extent of the appropriate
"In the area of Community law, the          protection is open to discussion. It is
problem had been discussed during the       clear, though, that this protection ends
deliberations of the European Parliament    where the lawyer himself assists or parti-
concerning the adoption of Regulation       cipates in illegal activities of his client. In
No 17/62; on the basis of the "Deringer     the context of a future comprehensive
Repon", the European Parliament made        and balanced solution of all the issues
a recommendation in favour of the           involved, there seems to be no reason to
protection of professional privilege.       treat salaried lawyers employed by their
However, this recommendation was not        client differently from independent
adopted by the Council."                    lawyers in professional practice, provided
                                            that they are effectively subject to similar
Your Lordships know that, in that           rules     of    professional     ethics    and
respect, my interpretation of what          discipline."
happened differs from the authors', who
continue:
                                            On 22 June 1978 the Commission gave
"After the enlargement of the Com-          its official view in answer to a question
munities the discussion has been revived    put down by Mr Cousté in the Par-
on the background of the particularly       liament (Written Question No 63/78).
extensive protection of professional        The Commission's answer to that
privilege in the UK and Ireland (which      question was as follows:
                                                                                      1623
 ---pagebreak---                             OPINION OF MR WARNER — CASE 155/79
"Anicie 14 of Council Regulation No          decision of the Member of the
17/62 empowers the Commission to             Commission responsible for competition
check and copy all correspondence and        policy to initiate an investigation was not
other business papers of a firm or           a formal decision under paragraph 3 of
association of firms, including papers       Article 14, but one that led only to
prepared for it by outside lawyers and       officials of the Commission being auth-
legal consultants.                           orized to carry out an investigation
                                             under paragraphs 1 and 2 of that Article.
Community competition legislatior does
not provide for any protection for lega!     On 20 February 1979 three officials of
papers. But the Commission, wishing to       the Commission (whom I will call "the
act fairly, follows the rules in th-         inspectors") appeared at the applicant's
competition law of certain Member            premises at Bristol, accompanied by an
States and is willing not to use as          official of the Office of Fair Trading,
evidence of infringements           of   the which is the "competent authority" in
Community competition rules any strictly     the United Kingdom for the purposes of
legal papers written with a view to          Article 14. The inspectors were armed
seeking or giving opinions on points of      with "authorizations to investigate"
law to be observed or relating to the        issued under Article 14 (2). Those were
preparation or planning of the defence of    served on the applicant's Managing
the firm or association of firms              Director, Mr A. T. Thomson, and the
concerned. When the Commission comes          investigation proceeded on that and the
across such papers it does not copy them.     following day, in the presence of two
                                              representatives     of   the     applicant's
                                              solicitors. At the end of it the inspectors
Subject to review by the Court of Justice,    left taking with them copies of about 35
it is for the Commission to determine the     documents. They also left with Mr
nature of a given paper.                     Thomson a written request for further
                                              documents relating to certain specified
                                              matters.
Lastly, the Commission would remind
the Honourable Member that, by virtue
of Article 20 of Regulation No 17/62 of       Mr Thomson responded to that request
the Council, Commission staff are bound       by a letter dated 26 March 1979, with
by an obligation of professional secrecy      which he sent to the Commission seven
 in all matters relating to the enforcement   files of documents. He told the
of Articles 85 and 86 of the EEC              Commission however, in that letter, that
Treaty."                                      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
 I turn back to the facts of this case.       privilege". For that reason those docu-
                                              ments were not produced. Descriptions
                                              of them were set out, in seventeen
                                              numbered paragraphs, in an appendix to
 I l l — T h e facts of the case              the letter.
                                               From those descriptions it seems that the
  It seems that, at all events so far as the  documents withheld fell broadly into
 applicant was concerned, the original         four categories:
  1624
 ---pagebreak---                                      AM & S v COMMISSION
  (i) solicitors' instructions to counsel,      with the applicant's solicitors. Without,
                                                so it seems, any further communication
                                                with the applicant or its solicitors, it
 (ii) communications between an outside         adopted, on 6 July 1979, a Decision
      solicitor and the applicant or one of     under Article 14 (3) addressed to the
      its parent companies containing           applicant (No 79/670/EEC).
      legal advice or requests for legal
      advice,
                                                The preamble to that Decision, after
                                                reciting the facts, continued as follows as
(iii) documents containing legal advice         regards the documents for which "legal
      or requests for legal advice from an      privilege" was claimed:
      "in-house" lawyer employed by the
      applicant or by one of ¡is parent
      companies and
                                                "Community        competition     legislation
                                                does not provide for any protection for
                                                legal     papers.     However,     as     the
(iv) communications between executives
                                                Commission made clear in its reply to
      of the applicant or one of its parent
                                                Written Question No 63/78 in the
      companies recording legal advice or
                                                European Parliament, asked by Mr
      requests for legal advice.
                                                Cousté, the Commission 'follows the
                                                rules in the competition law of certain
                                                Member States and is willing not to use
Mr Thomson also said in his letter that         as     evidence    of    infringements     of
the applicant's solicitors had indicated        Community competition rules any strictly
that certain passages of documents              legal papers written with a view to
included in the files to be sent to the         seeking or giving opinions on points of
Commission were of no relevance to the           law to be observed or relating to the
investigation it was conducting. Those          preparation or planning of the defence of
passages had been deleted and the               the firm or association of firms
solicitors would shortly be sending to the      concerned. When the Commission comes
Commission a statutory declaration               across such papers it does not copy
describing the deleted passages so that it      them'.
might be "satisfied" on that point.
Mr Thonson suggested that, should the            Clearly     neither    the      undertaking
Commission "need further confirmation            concerned nor its legal advisers can be
regarding the privileged documents or            the ultimate or only arbiter either as to
the deleted passages", it should contact         questions of fact or of law, as to whether
the applicant's solicitors to discuss the        any given document is one of these kinds
matter.                                          of documents and was written in
                                                 circumstances which would justify its not
                                                 being used.
On 5 April 1979 the solicitors wrote to
the Commission enclosing the promised
statutory declaration.                           Under existing Community law, and
                                                 subject to review by the Court of Justice,
                                                 it is for the Commission to determine
The Commission did not follow up Mr              whether a given document should be
Thomson's suggestion of discussions              used or not. Therefore it is necessary for
                                                                                         1625
 ---pagebreak---                             OPINION OF MR WARNER — CASE 155/79
AM & S Europe Ltd to allow the               Article 2 provided that the investigation
Commission's inspector to look at the        should begin on or after 9 July 1979.
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       On 25 July 1979 two of the
the inspector considers that they should     Commission's inspectors who had carried
not be used, he will not take any copies     out the earlier investigation in February
and the documents will not be used sub-      attended at the applicant's premises at
sequently by the Commission as evidence      Bristol and served the Decision. They
of any infringement."                        then carried out a further investigation
                                             at those premises, which lasted until
                                             27 July.
The preamble then dealt with the             During the investigation it was made
applicant's claim to be allowed to delete    clear on behalf of the applicant that it
from documents that were admittedly          was willing to produce all the documents
relevant to the investigation passages that  within Article 1 (a) of the Decision, with
its solicitors considered irrelevant. I need the exception of some for which "legal
not read the recitals about that, because    privilege" was claimed, and also to
that claim was subsequently dropped by       produce complete copies of the
the applicant and is not an issue in the     documents mentioned in Article 1 (c).
present action.                              The inspectors took copies of some
                                             documents and asked for copies of
                                             others.
Article 1 of the Decision required the       The applicant declined to show the
applicant to submit to an ivestigation at    inspectors the entirety of the documents
its premises at Bristol and Avonmouth        referred to in Article 1 (b) of the
and in particular to produce for exam-       Decision. Its solicitors told the inspectors
ination the business records required by     that, in their view, Community law did
the Commission officials responsible for     not require the applicant to disclose to
the investigation "which are in whole or     them the contents of those documents,
in part connected with the subject of the    but that they were willing to let the
inquiry". The Article then set out in        inspectors see parts of the documents in
paragraphs lettered (a), (b) and (c) three   question so that they could satisfy
categories of business records which         themselves that they were indeed
were "in particular" to be produced.         privileged. The inspectors indicated that
Paragraph (a) specified the documents        they were unwilling to proceed on the
that were the subject of the written         basis of seeing pans only of the
request made to Mr Thomson on                documents. The applicant's solicitors
21 February and some others. Paragraph       proposed that the matter be discussed at
(b) specified "all documents for which       a meeting to be arranged between the
legal privilege is claimed, as listed in the applicant's legal advisers and represen-
appendix to AM & S Europe Limited's          tatives of the Commission in Brussels.
letter of 26 March 1979 to the               The investigation was then halted as
Commission". Paragraph (c) specified         respects the documents for which
the complete texts of the documents          privilege was claimed, pending such a
from which passages had been deleted.        meeting.
 1626
 ---pagebreak---                                     AM & S v COMMISSION
 On 2 August 1979 the applicant's               issue for submission to this Court as to
 solicitors wrote to the Commission             whether the applicant had adequately
 enclosing copies of the remaining              complied with the Decision.
 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         The Commission's representatives con-
 those documents except one were                sidered however that the Commission's
 eventually disclosed to the Commission.        Decision required the production of the
                                                whole of the withheld documents to the
                                                inspectors. They conceded that, in
                                                practice, the inspectors might well need
The meeting was held at Brussels on             to see only part of a document to
 18 September 1979 between officials of         determine that it should not be used as
 the Commission's Directorate-General of        evidence by the Commission, but they
 Competition (DG IV) and of its Legal           considered it essential that the inspectors
 Service, on the one hand, and the              should have access to the entire
applicant's counsel and solicitors on the       document and that the inspectors alone
other. It was largely abortive.                should decide which parts of the
                                               document they would read in order to
                                               satisfy themselves that it should not be
                                               used.
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     In the upshot, all that was agreed
the inspector "to look at the documents,       between the parties at the meeting was
and to ask questions in connection with        that the dispute between them would
them, as far as is necessary for the           have to be brought before this Court by
purpose of establishing whether they           means of proceedings taken by the
should be used or not", proposed a             applicant under Article 173 of the Treaty
procedure under which enough of each           to challenge the Commission's Decision;
document would be shown to the                 and that, if such proceedings were taken,
inspectors to satisfy them of its privileged   the Commission would, until the Court
status. He emphasized that, if the             had given judgment, refrain            from
inspectors were allowed to see the whole       imposing any fine or penalty on the
of a document, its confidentiality would       applicant for failure to comply with the
be lost, particularly as the Commission,       Decision.
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            Accordingly, on 4 October 1979, the
knowledge acquired by them from the            applicant commenced the present action,
perusal of such a document. Mr Lever           in which it claims a declaration that
added that if, upon being shown what           Article 1 (b) of the Decision is void or,
the applicant's advisers considered was        alternatively,   void    "insofar    as ¡t
enough of a document to enable "any            necessarily requires the disclosure to the
reasonable inspector" to judge whether it      Commission's inspector of the whole of
was privileged, the inspector should still     each of the documents for which the
feel unsatisfied, there would be a clear       applicants claim protection on grounds
                                               of legal confidence".
                                                                                      1627
 ---pagebreak---                             OPINION OF MR WARNER — CASE 155/79
IV — T h e issues in the case                circumstances, documents for which
                                             protecion is claimed need not be read in
                                             full by the Commission's inspector for
The application was framed on the            the purpose of establishing whether they
footing that there was no dispute            should be regarded as protected or not.
between the parties as to the existence of   The services of the Commission consider
a principle of Community law protecting      that the question of the extent to which
communications between lawyer and            the inspector must be able to examine
client from disclosure, and that the issue   the contents of documents for which
between them was only as to procedure,       protection is claimed must be governed
the question being to what extent, if at     by the following principles:
all, the Commission was entitled to look
at a document in order to determine          — the public interest in ensuring that all
whether a claim that it was privileged           relevant evidence be submitted to the
from disclosure in accordance with that          Commission and the Court requires
principle was valid.                             that a claim that a document is
                                                 protected must be clearly established;
From the outset the Commission seemed
to endorse that view of the case. It began    — for that purpose the inspector
by asking for an extension of time for            responsible must be put in a position
lodging its defence while the applicant           in which he can be satisfied
considered      a letter that it (the             objectively and with reasonable
Commission) wrote to the applicant's              certainty that the document is one
solicitors on 31 October 1979. In that            which is protected under Community
 letter the Commission said this:                 law;
                                              — the document is to be inspected only
 "On reconsideration, the services of the
                                                  as far as is necessary for the purpose
 Commission consider that the proposal
                                                  of establishing with the appropriate
 put forward on behalf of AM & S at the
                                                  degree of certainty whether it is
 meeting on 18 September 1979 and the
                                                  protected or not;
 practice thought appropriate by the
 Commission may not be as different as
 had previously appeared to be the case.      — the extent to which it may be
                                                  necessary for the inspector to see the
                                                  text of the document will depend on
 Accordingly this letter is written to             all the circumstances. In practice it
 suggest that the documents now in                would normally be sufficient for him
 question should be shown to the rep-              to see the first and last pages of the
 resentative of DG IV on a basis similar           document and the headings, if any,
 to that outlined by Mr Lever. This is of          provided that these clearly show the
 course without prejudice to the legal             nature of the entire document. In
  arguments of either party in the                 cases where for any reason such a
  proceedings before the Court or in any           disclosure does not permit the
  difference of opinion which may arise            question    of    protection   to   be
  over whether particular documents are            determined with the appropriate
  protected, and without prejudice to              degree of certainty, the inspector
  further clarification by the Commission          must have a right to see other sub-
  of its intended practice.                        stantial parts of the document (in
                                                   addition of course to obtaining
  The services of the Commission have              evidence outside the text of the
  always considered that, depending on the         document itself if necessary).
   1628
 ---pagebreak---                                    AM 4: S v COMMISSION
 I hope that this letter may be a sufficient     the "legislative history" of Article 14. In
 basis to enable you to meet with               that part also the Commission referred to
 Commission officials again. If so, it          the Edward Report, to the paper written
 would be useful if you had with you            for the FIDE Congress by Drs
 copies of all the documents in question        Ehlermann and Oldekop, and to the
    Iv
                                                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
The offer contained in that letter was
                                                misunderstood:       the    Law     Reform
declined on behalf of the applicant,
 mainly because the Commission did not          Committee's 16th Report on "Privilege
thereby resile from its view that its           in Civil Proceedings" (Cmnd. 3472) and
inspectors were, in the last resort,            the decision of the House of Lords in
entitled to see as much of a document as         Waugh v British Railways Board [1980]
they thought fit before deciding whether       AC 521. (I shall discuss those authorities
it was privileged.                              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
On 17 December 1979 the Commission             should be controlled, are questions of
lodged its defence, whereby it made two        policy to be decided pragmatically
further concessions. The first was that its    according to circumstances" and not
Decision was to be interpreted as              questions of principle. The Commission
meaning that "the inspector is auth-           expressed its agreement with the
orized to look at documents for which          applicant that "the issues in this case are
protection is claimed only 'as far as is       entirely questions of procedure". In the
necessary for the purpose of establishing      second pan of the defence it argued in
whether they should be used or not', i.e.      favour of a procedure "on the lines set
used as evidence". The second was that         out in" its letter of 31 October 1979.
"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             The applicant in its reply stated "the very
result of inspecting documents for the         narrow issue that divides the paraes" to
purpose of deciding whether they are           be: "In order to verify claims for
protected". Reliance was placed on             protection of documents under the
behalf of the Commission, in subsequent        principle of legal confidence, is the
argument before us, on the fact that it        Commission entitled, as it claims, to
had made those concessions.                    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
The Commission's defence, apan from            gaining      knowledge     of   the     legal
announcing those concessions, fell into        confidences that are to be protected?"
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           The view that the issue in the case was a
Commission put forward its contention,         narrow one, relating only to the
with which I have already dealt, about         procedure whereby the question whether
                                                                                      1629
 ---pagebreak---                              OPINION OF MR TÅRNER — CASE 155/79
a document          was     protected   from   necessarily win this case, whilst, if there
disclosure should be decided, was             were such a principle, the Commission's
reiterated by the Commission in its            arguments on the procedural question
rejoinder.                                    would be relevant.
Of the interveners, the British and           There are thus in my opinion two major
French Governments both stated their           issues in this case.
views on the question of substantive law,
the British Government contending that        The first is whether the exercise by the
the concept of "legal professional             Commission of its powers under Article
privilege" or "confidentiality" or "secret     14 of Regulation No 17 is subject to a
professionnel" formed part of "the law"        principle     affording,   as    of    right,
of the Community in the sense borne by         protection against the disclosure of
that expression in Article 164 of the          communications passing between a
Treaty, and the French Government              lawyer and his client for the purpose of
contending       the     contrary.    Neither  seeking or giving legal advice. The Court
government, however, developed the             is not, I think, called upon, if it holds in
point at all fully in its written obser-       favour of the existence of such a
vations. The CCBE, on the other hand,          principle, to define in this case its precise
pointed      out     that    "Questions    of  scope, for instance to say to what extent
procedure do not arise in vacuo" and           it may apply where the communications
that it would be necessary for the Court,      are between an undertaking and a lawyer
before it could decide the procedural          employed on its own staff (an "in-
question, to decide whether there was a        house" lawyer), or may not apply where,
principle of Community law affording,          in the words of Drs Ehlermann and
as of right, protection against disclosure     Oldekop, "the lawyer himself assists or
of confidential communications between         participates in illegal activities of his
lawyer and client, and, if so, what its        client".
scope was. The CCBE accordingly made
very full written submissions on those         The second issue is, if such a principle
questions.                                     exists, as to the correct procedur for
                                               giving effect to it.
The Court agreed with the CCBE and
 invited the parties and the intervening
 governments to make submissions at the        V — T h e issue of principle
 hearing on those questions of principle.
 The applicant and the British and French       As respects the first issue I propose to
 Governments did so. Counsel for the            begin by dealing with a suggestion that
 Commission, on the other hand, told us         was tentatively put forward on behalf of
 that his instructions were to remain           the British Government, to the effect
 neutral on that issue and to leave it to       that, if the Court should hold that there
 "the wisdom of the Court". He was to           was no principle of Community law of
 stand by the answer given by the               the kind for which it primarily
 Commission to Mr Cousté and neither to         contended, the solution might lie in
 accept nor to dispute that there was a         holding that, in the absence of any
 principle of Community law such as was         relevant Community law, the provisions
 contended for by the applicant, the            of the national law of each Member
  British Government and the CCBE. He           State should be applied in relation to
 pointed out that, if there were no such        documents found in that Member State.
  principle,    the      Commission      must   That solution, the British Government
  1630
 ---pagebreak---                                    AM íc S v COMMISSION
  said, would at least secure that the           derived from them any general principle
  expectations of those who obtained legal       that    might     apply!   The     French
  advice in each Member State were not           Government went so far as to suggest
 disappointed: the same rights could be          that the present case represented an
  invoked against the Community auth-            attempt to foist on the Community what
 ority as against national authorities.          was no more than a domestic rule of
 Moreover the adoption of that solution          English law.
 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.                                 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
 In my opinion that solution will not           application of Community legislation.
 do. As die British Government itself           Were it otherwise, Community law
 acknowledged, the preamble to Regu-            would admit, for example, of no
 lation No 17 repeatedly refers to the          principle of proportionality of no
 need for Articles 85 and 86 of the Treaty      protection for legitimate expectations, of
to be applied in a uniform manner in the        no right to be heard (except where
Member States, and it does so specifi-          expressly provided for) and of no
cally in relation to the Commission's           guarantee of fundamental human rights.
powers to undertake investigations. Case       The French Government referred to
267/78 is in my opinion distinguishable,        Case 41/69 ACF            Chemie/arma v
because the Community legislation there         Commission [1979] 2 ECR 661, where
in question did not confer powers of           the Court held that it could not write
investigation directly on the Commission        into Regulation No 17 a period of
itself; it merely enabled the Commission       limitation within which the Commission
to be "associated with" inspection             must initiate proceedings against an
measures carried out by the national           undertaking. That case is not, however,
authorities.                                   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.
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       So the real question here is whether or
under Article 14 of Regulation No 17. In       not the laws of the Member States evince
so doing the French Government relied          the existence of a general principle of the
mainly on two propositions: (i) that there     kind in question. I agree with the CCBE
was no express provision of Community          that, if such a principle can be distilled
law imposing such a restriction and            from them, it matters not if its
(ii) that the relevant laws of the Member      conceptual origin, the methods wherebv
States were too disparate for there to be      it has been developed, or even the scope
                                                                                     1631
 ---pagebreak---                             OPINION OF MR WARNER — CASE 155/79
of its application in detail, differ from           so that it is extinguished if the client
Member State to Member State.                       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
I have already said that I did not propose          lawyer retains a discretion whether
to analyse or even to summarize the                 or not to disclose the contents of the
contents of the Edward Report. Nor do I             communication. Incidental differ-
propose to attempt an analysis of all the           ences such as those do not, how-
further authorities that have been placed           ever, in my opninion, go to the
before the Court as a result of the                 heart of the matter.
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       (iii) In each country the development of
States except Greece (because the case              the law has been largely conditioned
was argued before the accession of                  by procedural rules characteristic of
Greece to the Community) and also the               the legal system of that country. In
laws of some non-member States, certain              England, for instance, much of the
obvious conclusions can be drawn :                   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,
(i)   As     the     French     Government           each party is required to disclose to
      conceded, some protection for the              the other all the documents in his
      confidentiality of communications              possession,     custody   or     power
      between lawyer and client is given             relating to matters in question :r, the
      by the laws of all the Member                  action, whether or not such
      States. In every Member State the              documents would be admissible in
      hard core of the relevant law is that          evidence. Documents covered by
      a lawyer cannot be called upon to              "legal professional privilege" «re
      give evidence of what he has been              exempt from such discovery. The
      told by his client. But everywhere             procedure has, I believe, no exact
      the protection extends beyond that.            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
 (ii) In all Member States the protection             concerned with the powers and
      is afforded primarily by imposing on            obligations of the "juge d'instruc-
      the lawyer an obligation not to                 tion", particularly when carrying
      disclose the contents of those                  out a search at the professional
      communications. In some countries               chambers of an "avocat". The "juge
      (e.g. France) a breach of that                  d'instruction" has, as we learned in
      obligation by the lawyer is a                   Case 267/78, no direct equivalent in
      criminal offence. In others (e.g.               many other Member States. There
       England) it is only a civil wrong. In          again, however, such incidental
      some countries (e.g. England) the               differences do not, in my opinion,
       obligation is owed only to the client,         go to the heart of the matter.
  1632
 ---pagebreak---                                      AM & S v COMMISSION
 (iv) To      some     extent     also    the    of     preparing      for    pending    or
      development of the law in each             contemplated legal proceedings. That
      country has been conditioned by the        distinction is clearly brought out in the
      organization of the legal profession       authorities to which the Commission
      in that country, for instance, in          referred, the 16th Report of the Law
      England by the existence of the            Reform Committee and the judgments in
      distinctive roles of barristers and        the House of Lords in Waugh v British
      solicitors, and in France by the           Railways Board — see in particular, in
      distinctions    between        "avocats    the latter, per Lord Edmund Davies
      plaidants", "avocats consultants",         [1980] AC at pp. 541-542.
      "avoués" and "notaires". Once
      again, such differences do not, in
      my opinion, go to the heart of the          Waugh v British Railways Board was
      matter.                                    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
Here we are concerned with documents
found at the premises of the client which       enable the Board's solicitor to advise it
are claimed to be, or to reproduce,             upon, and to conduct on its behalf, any
communications passing between the              litigation that might arise from the
client and his lawyer for the purpose of        accident. It was held that the repon was
requesting or giving legal advice. The          not privileged because, in the case of a
question is whether such documents are          document in the second category, the
protected from disclosure to a public           purpose      of    preparing    for   legal
authority exercising a statutory power of       proceedings must be the sole or
search.                                         dominant purpose. That requirement is
                                                however irrelevant in the case of
                                                documents in the first category, with
                                                which alone we are concerned in the
As to that I must begin, I think, by            present case. Waugh v British Railways
saying a word about English law, partly         Board is not therefore, in my opinion, in
because of the widespread impression            point in this case.
that English law is, in this field, the most
developed, and partly because, as I
indicated earlier, the Commission has in        From the 16th Report of the Law
my opinion misinterpreted some of the           Reform Committee the Commission
authorities relating to that law.               deduced two propositions, neither of
                                                which, im my opinion, it supports.
In English law the doctrine misnamed
"legal professional privilege" (misnamed        The first was that "privilege" in English
because that label suggests a privilege         law is essentially a right to withhold
accorded to the legal profession) protects      evidence     from      a   tribunal.  This
two distinct categories of documents.           proposition the Commission deduced
The first category is communications            from the first sentence of the Report,
between a person and his lawyer for the         which reads as follows:
purpose of obtaining or giving legal
advice, whether or not in connection
with pending or contemplated legal              "Privilege in the law of evidence is the
proceedings. The second category is             right of a person to insist on there being
communications between a person or his          withheld from a judicial tribunal infor-
lawyer and third parties for the purpose        mation which might assist it to ascertain
                                                                                      1633
 ---pagebreak---                            OPINION OF MR EARNER — CASE 155/79
facts relevant to an issue upon which it is  comes into existence at the time when
adjudicating."                               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
The point here is that the terms of          overridden or modified by a statute.
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     Some      United      Kingdom      statutes
Committee's definition of its scope in       conferring     powers    of   investigation
that sentence. The Committee did not         expressly preserve the right. Such is in
thereby mean, and could not have             particular the case of Section 85 of the
meant, that "privilege" was no more          Fair Trading Act 1973 and Sections 3
than part of the law of evidence in civil    and 7 of the Competition Act 1980.
proceedings.                                 Thus, in the very field of competition
                                             law with which we are here concerned,
                                             the relevant United Kingdom statutes
From the remainder of the first              preserve the right as against the United
paragraph of the report the Commission       Kingdom authorities.
deduced that the approach of English
law to "privilege" was pragmatic and
that the extent of the protection it gave    Some United Kingdom statutes preserve
in any case depended on the particular       the right, but subject to modification. An
circumstances of that case. In a general     example of that i' to be found in
sense that is true. But the point that the   paragraph 5 of Sehet, ¡le 4 to the Finance
Committee was making, so far as here         Act 1975.
relevant, was that in some cases the law
gives a person an absolute right to claim
privilege, whilst in others it accords the   Lastly some United Kingdom statutes
judge a discretion. As subsequent            are, like Regulation No 17, silent on
paragraphs of the report make clear (see     the point. Counsel for the British
in particular paragraphs 17 to 23), where    Government hesitated to say that, in
"legal professional privilege" applies, it    such a case, the presumption was that the
confers an absolute right; the judge has      right was preserved. There is a surprising
 no discretion. Nor did the Committee         dearth of United Kingdom judicial
 recommend any change in the law in           authority directly on that question. The
that respect.                                 only case that comes anywhere near
                                              dealing with it seems to be Frank Truman
                                              Export    Ltd v Metropolitan         Police
 Thus, in my opinion, the English auth-       Commissioner [1977] 1 QB 952, but it
 orities relied on by the Commission do       does not really do so. We were however
 not support the propositions for which it    referred on behalf of the applicant to the
 cited them.                                  well established principle of English law
                                              that a statute is not to be interpreted as
                                              altering the common law to a greater
 As regards statutory powers of search,       extent than its terms provide, either
 the starting point of English law, as we     expressly or by necessary implication —
 were reminded by the CCBE and by             see Maxwell on the Interpretation of
 the British Government, is that the          Statutes, 12th Ed., pp. 116 et seq. We
 confidential character of a communi-         were also referred on behalf of the
 cation between a lawyer and his client       applicant to cases in Canada and in New
  1634
 ---pagebreak---                                     AM & S v COMMISSION
Zealand where that principle has been          de la défense" and of "le secret des
applied to statutes conferring powers of       lettres". The latter, sometimes called "le
investigation    on     public    authorities  secret des lettres missives" or "le secret
without saying anything about the              des lettres confidentielles", appears to be
privilege of communications between            particularly important.
lawyer      and    client,    and     where,
accordingly, it has been held that such        A helpful summary of the resultant law is
statutes did not override that privilege —     to be found in a repon and an opinion
see in particular Re Director              of  presented to the Belgian Conseil d'État
Investigation and Reserarch and Shell          by its Auditeur, C. Huberlant, in
 Canada Ltd (1975) 55 DLR (3d) 713,            Delhauter v Caisse générale d'épargne et
where the Federal Court of Appeal of           de retraite, JT 1962, p. 171. The Conseil
Canada so held in realtion to section 10       d'État followed his opinion and held that
of the Canadian Combines Investigation         the defendant could not be called upon
Act (a competition law provision), and         to disclose an opinion ("consultation")
 Commissioner of InUnd Revenue v West-         that it had received from its "avocat"
 Walker [1954] NZLR 191, where the             even though it had expressly relied upon
Court of Appeal of New Zealand so held         it in the decision that was under
in relation to section 163 of the Land         challenge before the Conseil d'État.
and Income Tax Act of New Zealand (a
fiscal law provision). Decisions of the
superior courts of Canada and of New           Most of the Belgian and French auth-
Zealand are of persuasive authority in         orities concerning statutory powers of
the English courts and I can, for my           search are about the obligations of the
part, see no good reason why an English        juge d'instruction when carrying out a
court should not follow those particular       criminal investigation. It is clear that he
decisions.                                     must respect the confidentiality of
                                               communications between a lawyer and
                                               his client. The French "Code de
I conclude that, if a provision like Article   Procédure Pénale", by Articles 56, 76
14 of Regulation No 17 were to be              and 96 expressly requires him to take
found in an English statute, it would          beforehand effective measures to ensure
almost certainly be held not to override       that the "secret professionnel" and the
the confidentiality of communications          "droits de la défense" shall be respected,
between lawyer and client.                     wherever he may search. When the juge
                                               d'instruction searches the professional
                                               chambers      of    an    avocat,   he    is
I must next say a word about the laws of       accompanied by the bâtonnier or his
Belgium      and of       France,    because   representative, whose role it is to make
particular reliance was placed on them,        sure that the confidentiality of communi-
on the one hand by the applicant and the       cations between the avocat and his
CCBE and on the other hand by the              clients is respected.
French Government.
                                               The French Government drew our
It seems clear from the authorities to         attention, however, to an important
which we have been referred that, in           exception to the general rule. The
those two countries, the law protecting        French Ordonnance No 45-1484 of 30
the confidentiality of communications          June 1945, which is described in its title
between lawyer and client has developed        as relating to "la constatation, la
not only on the basis of the concept of        poursuite et la répression des infractions
the "secret professionnel" but on the          à la législation économique", provides,
basis also of the concepts of "les droits      by Article 15 :
                                                                                      1635
 ---pagebreak---                             OPINION OF MR WARNER — CASE 155/79
"Les     agents    visés   à    l'article    6 gation is silent as to such communi-
(paragraphes 1 et 2) peuvent exiger la         cations, it automatically overrides their
communication, en quelque main qu'ils          confidentiality.
se trouvent, et procéder à la saisie des
documents de toute nature (comptabilité,       The laws of the other countries of the
copies de lettres, carnets de chèques,         Community were not discussed in
traites, comptes en banque, etc.), propres     anything like the same detail in the
à faciliter l'accomplissement de leur          argument before us. I hope that I shall
mission. Ils ont le droit de prélever des      not be thought to minimize their
échantillons.                                  importance if I confine myself, as
                                               regards     them,     to   referring    your
Les agents de la direction générale du         Lordships to the written observations of
contrôle      économique,      des      régies the CC6E, and in particular to the
financières, de la répression des fraudes      appendices thereto, and to saying that
et des poids et mesures peuvent                the authorities there cited seem to me,
également, sans se voir opposer le secret      on the whole, to lend support to the
professionnel, consulter tous documents        CCBE's submissions. It seems at all
dans les administrations ou offices de         events clear that, in no country other
l'État, des départements, des communes         than France, does legislation confer on
et des colonies, les établissements publics    the authorities responsible for the
et assimilés, les établissements            et administration     of    competition     law
organismes placés sous le contrôle de          powers of investigation enabling them
l'Etat, ainsi que les entreprises et services  to disregard the confidentiality of
concédés par l'État, les départements, les     communications between lawyer and
communes et les colonies."                     client. Indeed, had it been otherwise, it is
                                               difficult to see how Doctors Ehlermann
                                               and Oldekop could have reached the
                                               conclusions they did.
It was held by the French Conseil d'État
 in the Appratite case (Recueil des Arrêts
du Conseil d'État, 1952, p. 512) that,         There is however one point on which I
 although only the second paragraph of         think that the submissions of the
Article    15 expressly excluded the           applicant and of the CCBE went too far.
 application of "le secret professionnel",     They submitted that the right to
 it was also excluded by the first             confidential     communication       between
 paragraph, so that M. Apraillé, an            lawyer and client was a fundamental
 "avoué", had properly been fined for          human right. I do not think it is. There is
 refusing     to    disclose     confidential   no mention of it, as such, in the
 documents.                                     European Convention on Human Rights,
                                               or, seemingly, in the constitution of any
                                                Member Sute; and your Lordships have
 That decision shows of course that in          already seen that, in England and in
 France, as in England, an aptly worded         France at least, it is acknowledged to be
 statutory provision can override the           a right that can be overridden or
 confidentiality of communications be-          modified by an appropriately worded
 tween a lawyer and his client. It also         statute. The material placed before the
 shows how the Conseil d'État interpreted       Court by the CCBE shows that that is so
 the particular statutory provision there in    also in Belgium. In my opinion it is a
 question. But it does not, so it seems to      right that the laws of civilized countries
 me, establish the existence of a general       generally recognize, a right not lightly to
 rule of French law that, if a statutory        be denied, but not one so entrenched
 provision conferring a power of investi-       that, in the Community, the Council
  1636
 ---pagebreak---                                    AM & S v COMMISSION
could never legislate to override or          allowed to use knowledge that he has
modify it. I agree, however, that the         gained from it. In that connection the
Council cannot be held to have                Commission says that, under the organ-
overridden it simply by dint of saying        ization of its Direcorate-General of
nothing about it.                             Competition, the role of the inspector is
                                              only to gather evidence. The evidence so
                                              collected is handed over to an official in
My conclusion therefore, on this part of      another Directorate of the direcorate-
the case, is that the powers of the           General, who becomes the "rapporteur"
Commission under Article 14 of Regu-          in the case. The inspector who sees the
lation No 17 are exerciseable subject to      documents is not the person who later
the right of the undertaking under            decides whether there is sufficient
investigation to claim confidentiality for    evidence that the undertaking concerned
communications passing between itself         has infringed the Treaty. That is the
and its lawyers for the purpose of            responsibility of other officials, including
seeking or giving legal advice.               members of the Legal service, and
                                              ultimately of the Commission itself.
The next question is as to the procedure
that is appropriate to secure that right
                                              The Commission considers that, under
whilst avoiding its abuse.
                                              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
VI — T h e procedural issue                   is in an action brought by the under-
                                              taking concerned under Article 173 of
                                              the Treaty to challenge any eventual
The     fundamental       basis   of    the   decision of the Commission that the
Commission's position on that issue is        undertaking has been guilty of an
that the only satisfactory way of deciding    infringement of the Treaty. If then the
whether a document is entitled to             Court found that the decision had been
protection is by allowing someone to          based in a sufficiently important respect
look at it. With that I agree.                on information contained in a document
                                              that should have been treated as
                                              protected but was not, the Court could
The Commission goes on to say that,           declare the decision void. There was, the
under      present    arrangements,    that   Commission submitted, in the present
someone can only be its own inspector.        state of the legislation, no earlier stage at
As your Lordships have seen, the              which the Court be called upon to
Commission concedes that in many cases        intervene.
the inspector need not look at the whole
of the document in order to be satisfied.
But, the Commission submits, the forms        To be fair to the Commission, it does
that communications between a lawyer          not claim that the procedure it contends
and his client may take are so diverse        for is perfect. It states its readiness to
that the inspector must be allowed to         alter the procedure by regulation and
look at as much of the document as he         says that it "will of course be guided by
thinks fit and, if necessary, at the whole    anything the Court may say in its
of it. The Commission stresses the            judgment in this case". The Commission
concessions that it has made that, not        submits, however, that "with the safe-
only will a protected document not be         guards outlined its procedure is a
copied, but the inspector will not be         reasonably satisfactory procedure and
                                                                                      1637
 ---pagebreak---                            OPINION OF MR EARNER — CASE 155/79
the only procedure available under           basing that decision to a material extent
existing Community law", and that            on the contents of that document.
"until it is changed, it must be used".
                                             Alternatively, the inspector may, having
                                             seen the confidential contents of a
I will say at once that I do not share the   document, decide that it is protected. In
Commission's view that that is the only      that case he is required by the
procedure      available   under    existing Commission's instructions to put what he
Community law. Nor am I sure that the        has seen out of his mind. We all know
Commission is itself empowered to alter      how difficult it is, even for a judge, to
the relevant legislation. Article 87 of the  perform that feat. But, even if the
Treaty confers legislative powers only on    inspector does conscientiously and suc-
the Council and, whilst the Council has      cessfully perform it, those affected will
delegated some legislative powers to the     not be able to be sure that he has done
Commission by Article 24 of Regulation       so. We were reminded by the applicant,
No 17, it is by no means clear that they     in this connection, of the maxim that
extend to the present subject-matter.        "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
I am also impressed by some of the           inspector and other officials within the
criticisms made by the applicant and         Commission's Directorate-General of
others of the procedure favoured by the      Competition, it is none the less the
Commission.                                  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-
In the first place that procedure, in my     taking or undertakings concerned. It
opinion, confers too much power on the       would be impossible, in my opinion, for
inspector, who need not be a lawyer and      anyone to be sure that a question put by
who, even if he is a lawyer, may make        the inspector, the answer to which would
mistakes, not least because we are in an     be recorded and could be used in
area of Community law that is still          evidence, had not been inspired, albeit
largely uncharted. If the inspector er-      unconsciously perhaps, by something
roneously decides, in the case of a          that he had read in the protected
document which in truth is entitled to       document.
protection, that it is not entitled to
protection, there is nothing to stop him
taking copies of it, or to stop it there-    The fundamental flaw in the procedure
after    being    freely   used    by    the advocated by the Commission, or
Commision. In such a case the suggested      perhaps rather in the thinking that
remedy in an eventual action before this     underlies it, seems to me to be that it
Court will be illusory. The dissemination    misapprehends the real basis of the
of a document that should have               principle protecting the confidentiality of
remained confidential will have taken        communications between a lawver and
place long before any such action can be     his client, which, in a nutshell, is that, in
brought. Moreover the availability of        a civilized society, a man is entitled to
that remedy will depend on the               feel that what passes between him and
Commission reaching a decision adverse       his lawyer is secure from disclosure. That
to the undertaking concerned and on its      principie is accordingly breached as soon
 1638
 ---pagebreak---                                   AM &: S v COMMISSION
as there is disclosure of the contents of     The applicant made various suggestions
such a communication, and not merely          as to the sort of "reasonable steps"
by its being used in evidence. That is not    that the parties might take, whilst
to say, of course, that, where a genuine      emphasizing that those steps might vary
dispute arises as to whether a document       from case to case and might be for
is entitled to protection, someone should     discussion between the undertaking and
not look at it to resolve the dispute. But    the Commission. The applicant instanced
that someone should, in general, be           an    attempt      by    the   undertaking
independent of the parties to the dispute,    concerned, such as it had itself made in
and be himself secure — which is              the appendix to Mr Thomson's letter of
another way of saying that the determi-       26 March 1979, to give a careful
nation of such a dispute is essentially a     description of the nature of the
judicial function.                            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.
The applicant's main submission was
                                              As a last resort the applicant envisaged
that, until on the inititative of the
                                              the possibility for the parties to agree
Commission the Council made a regu-
lation for the verification of claims for     upon "a reputable experienced and
protection of documents on grounds of         wholly independent lawyer" who could
"legal confidence", it was incumbent          inspect the documents and verify their
both on the undertaking claiming such         description. If the undertaking refused a
protection and on the Commission to           request by the Commission that the
take reasonable steps to agree upon a         documents should be submitted to such
means of verification that did not involve    an independent lawyer, it should, the
the Commission itself being entitled to       applicant said, be held to have acted
see the contents of the documents, since      unreasonably and therefore disentitled to
that would be "a clear denial" of the         succeed in any action it might bring
principle of the protection of "legal         before this Court to challenge a decision
confidence". In the event of ultimate         of the Commission imposing a fine or
disagreement between the parties, it          penalties upon it.
would, the applicant submitted, be for
this Court to inspect the documents and
adjudicate on the dispute.
                                              The applicant conceded that that was an
                                              "improvised" procedure but submitted
                                              that improvisation was inevitable in the
The applicant envisaged that, if the          absence of legislation prescribing a
Commission       and    the   undertaking     proper procedure. The blame lay with
concerned in a particular case disagreed      the Commission for not having exercised
on the question whether each of them          its power to propose such legislation.
had taken such "reasonable steps", the
Commission could proceed to take a
decision imposing on the undertaking a
                                              There are to my mind two objections to
fine under Anicie 15 (1) (c) of Regu-
                                              the course thus proposed by the
lation No 17 or periodic penalty
payments under Article 16 (1) (d) of that     applicant.
Regulation. The dispute could then be
brought before this Court by way of an
action by the undertaking under Article       The first is that the task of this Court in
 173 of the Treaty challenging that           this case is to lay down what is the
decision.                                     correct procedure in the present state of
                                                                                     1639
 ---pagebreak---                            OPINION OF MR EARNER — CASE 155/79
Community law, not to give its approval      could be sent in a sealed envelope for
to suggestions for improvisation pending    perusal by, say, someone in the
the enactment of further Community          Commission's Legal Service, who would
legislation, if any.                        be required to impart its contents only
                                            to the Members of the Commission
                                            responsible for taking the actual decision
The second is that the adoption of that     on the claim, and who would be
course would involve departing in two       required, also, to take no further
ways from the institutional structure of    personal part in the case. But I can find
the Community as laid down in the           no provision in the present legislation on
Treaty. First it would involve delegating   the basis of which such a procedure
a power of decision to a person, "the       could be prescribed, and it would still be
independent lawyer", not recognized by      open to the objection that it necessitated
the Treaty. Secondly it would involve       disclosure of the contents of the
requiring the Commission to adopt a         document       to   persons within      the
decision in ignorance of the full facts on  Commission.
which the decision was based, leaving
those facts to be ascertained by this
Court.                                      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
The latter objection applies also, in my    by counsel for the applicant at the
opinion, to somewhat analogous pro-         hearing, as an alternative to his main
cedures that were suggested to us on        submission. It is that reson should be
behalf of the British Government and of     had to the national courts. That solution
the CCBE.                                   differs, of course, from the solution put
                                            forward by the British Government as its
                                            alternative submission on the issue of
I have come to the conclusion that it is    principle, in that it involves, not the
impossible — and it is indeed logically     application of national law, but the
impossible — to envisage a procedure        application by the national courts of
which, on the one hand, ensures that the    Community law, those courts being able,
contents of a document for which            when in doubt, to refer to this Court
protection is claimed are not disclosed to  under Article 177 of the Treaty.
anyone in the Commission so long as
there has been no authoritative decision
that that claim is ill-founded, whmt, on    There is, in my opinion, a sound
the other hand, leaving it to the           legislative basis for that solution in
Commission to decide in the first           paragraph 6 of Article 14 of Regulation
instance upon the validity of that claim,   No 17, which requires a Member State,
so as to pave the way for proceedings       where an undertaking "opposes" an
about it in this Court.                     investigation ordered pursuant to that
                                            Article, to "afford         the   necessary
                                             assistance to the officials authorized by
One might envisage a procedure under         the Commission". The organs of the
which the existing internal arrangements     Member State there referred to must
of the Commission were improved, so          include its courts. Moreover resort to
that, for instance, where an undertaking     them appears all the more logical when
claimed protection for a panicular          one bears in mind that, by virtue of
document and was unable to persuade         Article 13 of the Regulation, an
the Commission's inspector, on the spot,     investigation ordered by the Commission
of its protected nature, the document        under Article 14, including one ordered
 1640
 ---pagebreak---                                   AM íc S v COMMISSION
by decision of the Commission under           to the national courts would be appro-
Anicie 14 (3), may be undertaken by           priate where the dispute arose between
officials of the competent authorities of     an undertaking and a national authority
the Member States instead of by officials     enforcing Community competition law.
of the Commission. Where a dispute of         At all events, Anicie 14 (6) of Regulation
the present kind arose between an under-      No 17 seems to me, particularly in the
taking in a Member State and the              light of Article 5 of the Treaty, amply
competent authority of that Member            adequate to require Member States to
State, the natural forum for resolving it     introduce the necessary procedures if
would be the courts of that State. Indeed     and in so far as they do not already exist.
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
                                              Counsel's second ground was that, if the
Commission under Anicie 13 (2), or by
                                              matter were left to national courts, there
officials of the Commission, assisted or
                                              would be a risk that in practice they
not by officials of the national authority
                                              would apply their national rules of law.
under Article 14 (5). It is to be observed
                                              That, in my opinion, is not a tenable
that the ultimate sanctions provided for
                                              ground. National courts are used to
by Articles 15 (1) (c) and 16 (1) (d)
                                              distinguishing between cases where they
apply in either case. There is of course
                                              must apply their national law and cases
no difficulty in the way of the
                                              where they must apply Community law.
Commission appearing as a party to
                                              Indeed it is their duty so to do.
proceedings in the courts of a Member
State — see Anicie 211 of the Treaty.
                                              Counsel's third ground was at first sight
                                              more impressive. It was that resort to the
Counsel for the Commission, at the            national courts would cause delay. One
hearing,     questioned    whether     that   answer to that is of course that the risk
solution would be appropriate. He did         of delay is no reason for denying a
so, as I understood him, on three             person justice. But in any case I think
grounds.                                      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
The first was that an appropriate             profession is particularly alert to the
procedure might not exist in all Member       need to protect confidential documents,
States. He himself, however, rather           and where both the substantive and the
destroyed      that  ground     when     he   procedural law afford ample oppor-
conceded, on the basis of paragraph 13        tunities for litigation about it. I think it
of the judgment of this Court in Case         probable that, in practice, provided that
826/79 the Mireco case (10 July 1980,         the Commission's inspectors exercise
not yet reponed), which had been cited        common sense, such a dispute will arise
by counsel for the applicant, that resort     only where either the undertaking
                                                                                     1641
 ---pagebreak---                       OPINION OF SIR GORDON SLYNN — CASE 155/79
concerned is using delaying tactics, in      genuine question of principle is at stake,
which case the competent national courts     in which case it will be right that that
should make short shrift of it, or where a   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.
      O P I N I O N OF ADVOCATE GENERAL SIR G O R D O N SLYNN
                     DELIVERED O N 26 JANUARY 1982
My Lords,                                    investigation of competitive condition«
                                             concerning the production and distri-
In February- 1979, officials of the          bution of zinc metal and its allovs and
Commission required the applicants to        zinc concentrates in order to venf\ that
make available" documents which they         there is no infringement of Anieles ï»r>
wished to ir·, in connection with an         and 86 of the EEC Trean               Thr
investigatici· being conducted pursuant      applicants produced copies of mos: ot
to Article 14 (1) of Council Regulation      the documents. Some, however, were not
No 17 of 6 Februan- 1962 (Official           produced; so far as relevant, on the basis
Journal English Special Edition, 1959·       that they were covered by lepal
1962, p. 87). This was said to be an         confidentiality,  which entitled       the
 1642