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COMP ET I T I ON LAW
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The Court of Justice re-specified the Limits of the Attorney-
Client Privilege in Competition Law
*
By its judgment rendered within the case
Akzo and Akcros v
Commission
on 14 September 2010
1
, the Court of Justice of the European
Union (hereinafter referred to as the “Court”) decided that internal
company communications with in-house lawyers were not covered by
attorney-client privilege.
Judgment’s Background
On the basis of the decision ordering the investigation
2
, Commission
officials, assisted by representatives of the Office of Fair Trading
3
, carried
out on 12 and 13 February 2003 an investigation at the premises of Akzo
Nobel Chemicals Ltd (hereinafter referred to as “Akzo”) and Akcros
Chemicals Ltd (hereinafter referred to as “Akcros) in the United Kingdom
in order to seek evidence of possible anti-competitive practices.
During the investigation, Commission officials took copies of a
considerable number of documents, including communications between
lawyers and their clients
4
and, upon examination of these communications,
decided that these communications definitely were not protected by
attorney-client privilege
5
.
General Court’s Decision
Akzo and Akcros filed an action before the General Court for the
annulment of the Commission decision ordering the investigation and the
return of the communications seized in the course of the investigation.
The General Court, within the examination of the case, referred to
the
AM & S Europe v. Commission
decision which states two cumulative
*
Article of September 2010
1 To consult the judgment, see the following link:
http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=EN&Submit=rechercher&numaff=C-550/07.
2 Commission decision C(2003) 5594 of 10 February 2003 amending the Commission decision
C(2003) 85/4 of 30 January 2003.
3 The Office of Fair Trading is the British competition authority.
4 It is question of two e-mails exchanged between Akcros’ general manager and Mr. S., Akzo’s
coordinator for competition law. The latter is enrolled as an Advocate of the Netherlands Bar
and, at the material time, was a member of Akzo’s legal department and was therefore emplo-
yed by that undertaking on a permanent basis.
5 Commission decision C(2003) 1533 of 8 May 2003.