AM & S Europe Limited v Commission of the European Communities.
Date: 1982-05-18
18 HOWEVER , THE ABOVE RULES DO NOT EXCLUDE THE POSSIBILITY OF RECOGNIZING , SUBJECT TO CERTAIN CONDITIONS , THAT CERTAIN BUSINESS RECORDS ARE OF A CONFIDENTIAL NATURE . COMMUNITY LAW , WHICH DERIVES FROM NOT ONLY THE ECONOMIC BUT ALSO THE LEGAL INTERPENETRATION OF THE MEMBER STATES , MUST TAKE INTO ACCOUNT THE PRINCIPLES AND CONCEPTS COMMON TO THE LAWS OF THOSE STATES CONCERNING THE OBSERVANCE OF CONFIDENTIALITY , IN PARTICULAR , AS REGARDS CERTAIN COMMUNICATIONS BETWEEN LAWYER AND CLIENT . THAT CONFIDENTIALITY SERVES THE REQUIREMENTS , THE IMPORTANCE OF WHICH IS RECOGNIZED IN ALL OF THE MEMBER STATES , THAT ANY PERSON MUST BE ABLE , WITHOUT CONSTRAINT , TO CONSULT A LAWYER WHOSE PROFESSION ENTAILS THE GIVING OF INDEPENDENT LEGAL ADVICE TO ALL THOSE IN NEED OF IT .
19 AS FAR AS THE PROTECTION OF WRITTEN COMMUNICATIONS BETWEEN LAWYER AND CLIENT IS CONCERNED , IT IS APPARENT FROM THE LEGAL SYSTEMS OF THE MEMBER STATES THAT , ALTHOUGH THE PRINCIPLE OF SUCH PROTECTION IS GENERALLY RECOGNIZED , ITS SCOPE AND THE CRITERIA FOR APPLYING IT VARY , AS HAS , INDEED , BEEN CONCEDED BOTH BY THE APPLICANT AND BY THE PARTIES WHO HAVE INTERVENED IN SUPPORT OF ITS CONCLUSIONS .
20 WHILST IN SOME OF THE MEMBER STATES THE PROTECTION AGAINST DISCLOSURE AFFORDED TO WRITTEN COMMUNICATIONS BETWEEN LAWYER AND CLIENT IS BASED PRINCIPALLY ON A RECOGNITION OF THE VERY NATURE OF THE LEGAL PROFESSION , INASMUCH     AS IT CONTRIBUTES TOWARDS THE MAINTENANCE OF THE RULE OF LAW , IN OTHER MEMBER STATES THE SAME PROTECTION IS JUSTIFIED BY THE MORE SPECIFIC REQUIREMENT ( WHICH , MOREOVER , IS ALSO RECOGNIZED IN THE FIRST-MENTIONED STATES ) THAT THE RIGHTS OF THE DEFENCE MUST BE RESPECTED .
21 APART FROM THESE DIFFERENCES , HOWEVER , THERE ARE TO BE FOUND IN THE NATIONAL LAWS OF THE MEMBER STATES COMMON CRITERIA INASMUCH AS THOSE LAWS PROTECT , IN SIMILAR CIRCUMSTANCES , THE CONFIDENTIALITY OF WRITTEN COMMUNICATIONS BETWEEN LAWYER AND CLIENT PROVIDED THAT , ON THE ONE HAND , SUCH COMMUNICATIONS ARE MADE FOR THE PURPOSES AND IN THE INTERESTS OF THE CLIENT ' S RIGHTS OF DEFENCE AND , ON THE OTHER HAND , THEY EMANATE FROM INDEPENDENT LAWYERS , THAT IS TO SAY , LAWYERS WHO ARE NOT BOUND TO THE CLIENT BY A RELATIONSHIP OF EMPLOYMENT .
22 VIEWED IN THAT CONTEXT REGULATION NO 17 MUST BE INTERPRETED AS PROTECTING , IN ITS TURN , THE CONFIDENTIALITY OF WRITTEN COMMUNICATIONS BETWEEN LAWYER AND CLIENT SUBJECT TO THOSE TWO CONDITIONS , AND THUS INCORPORATING SUCH ELEMENTS OF THAT PROTECTION AS ARE COMMON TO THE LAWS OF THE MEMBER STATES .
23 AS FAR AS THE FIRST OF THOSE TWO CONDITIONS IS CONCERNED , IN REGULATION NO 17 ITSELF , IN PARTICULAR IN THE ELEVENTH RECITAL IN ITS PREAMBLE AND IN THE PROVISIONS CONTAINED IN ARTICLE 19 , CARE IS TAKEN TO ENSURE THAT THE RIGHTS OF THE DEFENCE MAY BE EXERCISED TO THE FULL , AND THE PROTECTION OF THE CONFIDENTIALITY OF WRITTEN COMMUNICATIONS BETWEEN LAWYER AND CLIENT IS AN ESSENTIAL COROLLARY TO THOSE RIGHTS . IN THOSE CIRCUMSTANCES , SUCH PROTECTION MUST , IF IT IS TO BE EFFECTIVE , BE RECOGNIZED AS COVERING ALL WRITTEN COMMUNICATIONS EXCHANGED AFTER THE INITIATION OF THE ADMINISTRATIVE PROCEDURE UNDER REGULATION NO 17 WHICH MAY LEAD TO A DECISION ON THE APPLICATION OF ARTICLES 85 AND 86 OF THE TREATY OR TO A DECISION IMPOSING A PECUNIARY SANCTION ON THE UNDERTAKING . IT MUST ALSO BE POSSIBLE TO EXTEND IT TO EARLIER WRITTEN COMMUNICATIONS WHICH HAVE A RELATIONSHIP TO THE SUBJECT-MATTER OF THAT PROCEDURE .
24 AS REGARDS THE SECOND CONDITION , IT SHOULD BE STATED THAT THE REQUIREMENT AS TO THE POSITION AND STATUS AS AN INDEPENDENT LAWYER , WHICH MUST BE FULFILLED BY THE LEGAL ADVISER FROM WHOM THE WRITTEN COMMUNICATIONS WHICH MAY BE PROTECTED EMANATE , IS BASED ON A CONCEPTION OF THE LAWYER ' S ROLE AS COLLABORATING IN THE ADMINISTRATION OF JUSTICE BY THE COURTS AND AS BEING REQUIRED TO     PROVIDE , IN FULL INDEPENDENCE , AND IN THE OVERRIDING INTERESTS OF THAT CAUSE , SUCH LEGAL ASSISTANCE AS THE CLIENT NEEDS . THE COUNTERPART OF THAT PROTECTION LIES IN THE RULES OF PROFESSIONAL ETHICS AND DISCIPLINE WHICH ARE LAID DOWN AND ENFORCED IN THE GENERAL INTEREST BY INSTITUTIONS ENDOWED WITH THE REQUISITE POWERS FOR THAT PURPOSE . SUCH A CONCEPTION REFLECTS THE LEGAL TRADITIONS COMMON TO THE MEMBER STATES AND IS ALSO TO BE FOUND IN LEGAL ORDER OF THE COMMUNITY , AS IS DEMONSTRATED BY ARTICLE 17 OF THE PROTOCOLS ON THE STATUTES OF THE COURT OF JUSTICE OF THE EEC AND THE EAEC , AND ALSO BY ARTICLE 20 OF THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE ECSC .