Court Of First Instance Reaffirms Narrow Application Of Attorney Client Privilege in EU Competition Proceedings

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The September 17, 2007 decision of the Court of First Instance (“CFI”) in Akzo v. Commission provided an opportunity to revisit and comment on the position enunciated by the European Court of Justice (“ECJ”) in its 1982 judgment in AM&S v. Commission[1] case concerning the treatment of legal privilege in the context of EU competition law investigations.

AM&S recognized the right of companies under investigation to withhold communications between the company and “an independent lawyer entitled to practice his profession in a Member State,” where those communications were exchanged after the initiation of the proceedings or occurred

before and had a relationship to the subject-matter of the proceedings. This principle was derived from the right to defense explicitly recognized in Regulation 17, the basic competition law procedural regulation (now replaced by Regulation 1). The formula used by the ECJ made it clear the privilege did not apply to in-house counsel, or to outside lawyers who are members of a third-country bar but

not an EU Member State bar. The AM&S judgment sketched out a proceeding for the handling of privilege claims arising in the course of investigations: where a company asserts privilege during an investigation, it must provide

“relevant material” demonstrating the eligibility of the document in question but is not required to “reveal the contents” of the document; if the European Commission

(“Commission”) is not satisfied, it may make a decision ordering disclosure of the document, which the company can appeal to the CFI. Under the practice developed by the Commission, the contested document is placed in a sealed envelope, and, if the matter cannot be resolved without an

appeal, is examined by the CFI.

The AM&S judgment left many questions open, in particular regarding the scope of the privilege.

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