Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd v European Commission.
Date: 2010-09-14
16. First of all, the Commission questions whether Akzo and Akcros have an interest in bringing proceedings. The two e-mails do not fulfil the first condition for legal professional privilege set out in paragraphs 21 and 23 of the judgment in Case 155/79 AM & S Europe  v Commission  [1982] ECR 1575, according to which legal advice must be requested and given for the purposes of the client’s rights of defence. The first e-mail is merely a request for comments on a draft letter to be sent to a third party. The second e-mail contains mere changes to the wording.
22. In answer to the objection raised by the Commission, it must be recalled that the interest in bringing proceedings is a condition of admissibility which must continue up to the Court’s decision in the case (see, Joined Cases C-373/06 P, C‑379/06 P and C-382/06 P Flaherty and Others  v Commission  [2008] ECR I‑2649, paragraph 25 and the case-law cited).
23. The Court also stated that such an interest exists as long as the appeal may, if successful, procure an advantage to the party bringing it (see, Case C-277/01 P Parliament v Samper  [2003] ECR I-3019, paragraph 28, and Case C-362/05 P Wunenburger  v Commission [2007] ECR I-4333, paragraph 42, and order of 8 April 2008 in Case C-503/07 Saint-Gobain Glass Deutschland  v Commission  [2008] ECR I-2217, paragraph 48 and the case-law cited).
40. It must be recalled that, in AM & S Europe  v Commission , the Court, taking account of the common criteria and similar circumstances existing at the time in the national laws of the Member States, held, in paragraph 21 of that judgment, that the confidentiality of written communications between lawyers and clients should be protected at Community level. However, the Court stated that that protection was subject to two cumulative conditions.
41. In that connection, the Court stated, first, that the exchange with the lawyer must be connected to ‘the client’s rights of defence’ and, second, that the exchange must emanate from ‘independent lawyers’, that is to say ‘lawyers who are not bound to the client by a relationship of employment’.
42. As to the second condition, the Court observed, in paragraph 24 of the judgment in AM & S Europe  v Commission , that the requirement as to the position and status as an independent lawyer, which must be fulfilled by the legal adviser from whom the written communications which may be protected emanate, is based on a conception of the lawyer’s role as collaborating in the administration of justice and as being required to provide, in full independence and in the overriding interests of that cause, such legal assistance as the client needs. The counterpart to that protection lies in the rules of professional ethics and discipline which are laid down and enforced in the general interest. The Court also held, in paragraph 24, that such a conception reflects the legal traditions common to the Member States and is also to be found in the legal order of the European Union, as is demonstrated by the provisions of Article 19 of the Statute of the Court of Justice.
45. As the Advocate General observed in points 60 and 61 of her Opinion, the concept of the independence of lawyers is determined not only positively, that is by reference to professional ethical obligations, but also negatively, by the absence of an employment relationship. An in-house lawyer, despite his enrolment with a Bar or Law Society and the professional ethical obligations to which he is, as a result, subject, does not enjoy the same degree of independence from his employer as a lawyer working in an external law firm does in relation to his client. Consequently, an in-house lawyer is less able to deal effectively with any conflicts between his professional obligations and the aims of his client.
54. It must be recalled that the principle of equal treatment is a general principle of European Union law, enshrined in Articles 20 and 21 of the Charter of Fundamental Rights of the European Union.
55. According to settled case-law, that principle requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see Case C-344/04 IATA and ELFAA  [2006] ECR I-403, paragraph 95; Case C-303/05 Advocaten voor de Wereld  [2007] ECR I-3633, paragraph 56; and Case C-127/07 Arcelor Atlantique et Lorraine and Others  [2008] ECR I-9895, paragraph 23).
70. The Court observed, in paragraphs 19 and 20 of the judgment in AM & S Europe  v Commission  that, although the protection of written communications between lawyer and client is generally recognised, its scope and the criteria for applying it vary in accordance with the different national rules. However, the Court acknowledged, on the basis of that comparison, that legal professional privilege should be protected under European Union law, as long as the two conditions laid down in paragraph 21 of that judgment are fulfilled.
92. It must be recalled that in all proceedings in which sanctions, especially fines or penalty payments, may be imposed observance of the rights of the defence is a fundamental principle of European Union law which has been emphasised on numerous occasions in the case-law of the Court (see, Case C-194/99 P Thyssen Stahl  v Commission  [2003] ECR I-10821, paragraph 30; Case C-289/04 P Showa Denko  v Commission [2006] ECR I-5859, paragraph 68; Case C-3/06 P Groupe Danone v Commission  [2007] ECR I-1331, paragraph 68), and which has been enshrined in Article 48(2) of the Charter of Fundamental Right of the European Union.
100. It must be recalled that legal certainty is a general principle of European Union law which requires in particular that rules involving negative consequences for individuals should be clear and precise and their application predictable for those subject to them (see Case C-110/03 Belgium  v Commission  [2005] ECR I-2801, paragraph 30; Case C-76/06 P Britannia Alloys & Chemicals  v Commission  [2007] ECR I-4405, paragraph 79; and Case C-226/08 Stadt Papenburg  [2010] ECR I-0000, paragraph 45).
103. The Court has held in that connection that restrictive practices are viewed differently by European Union law and national law. Whilst Articles 101 TFEU and 102 TFEU view them in the light of the obstacles which may result for trade between the Member States, each body of national legislation proceeds on the basis of considerations peculiar to it and considers restrictive practices solely in that context (see, to that effect, Case C-67/91 Asociación Española de Banca Privada and Others [1992] ECR I-4785, paragraph 11).
113. It must be recalled that, in accordance with the principle of national procedural autonomy, in the absence of European Union rules governing the matter, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from European Union law (see, to that effect, Case 33/76 Rewe  [1976] ECR 1989, paragraph 5; Case C-213/89 Factortame and Others  [1990] ECR I-2433, paragraph 19; Case C‑312/93 Peterbroeck  [1995] ECR I-4599, paragraph 12; and Case C-13/01 Safalero  [2003] ECR I-8679, paragraph 49).