CELEX: 61979CC0155(01)
Language: en
Date: 1982-01-26
Title: Opinion of Mr Advocate General Sir Gordon Slynn delivered on 26 January 1982. # AM & S Europe Limited v Commission of the European Communities. # Legal privilege. # Case 155/79.

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