Germany: Newsletter Antitrust Law – September 2010

In a judgement dated 14 September 2010 in the matter Akzo Nobel Chemicals and Akcros Chemicals/Commission (Case C-550/07 P), the European Court of Justice (ECJ) has reconfirmed that the internal correspondence with in-house counsel/staff lawyers within a company is not protected by the confidentiality extended to communications between clients and lawyers (legal privilege). This judgement conclusively establishes that companies will have to tolerate investigations and, where necessary, the securing of correspondence exchanged between staff lawyers and company employees by the European Commission, if the purpose of such investigations is to procure evidence of unfair competitive practices.

The status quo in European law

In a judgement of 18 May 1982 in the matter AM & S/Commission, the ECJ had already made the protection of the confidentiality of communications between clients and lawyers in proceedings before the European Commission dependent upon two conditions: firstly, the correspondence with the lawyer must be in relation to the client's right to defence. Secondly, this correspondence must originate from external lawyers who are enrolled as members of a bar or law society in a Member State of the European Union. The ECJ based its conclusions on corresponding common legal principles and traditions of the Member States.

In its most recent judgement, the ECJ has clarified once again that an in-house counsel who occupies the position of an employee in the company – even if he is enrolled as a member of a bar or law society in one or several Member States - does not enjoy a level of professional independence comparable to that of an external lawyer on grounds of his economic dependence and close ties with his employer. For this reason, the ECJ's case law also does not violate the principle of non-discrimination, as a staff lawyer's position fundamentally differs from that of an external lawyer. Moreover, and as expressly emphasised yet again by the ECJ in its judgement, the legal systems of the Member States do not show any prevailing trend towards protecting the confidentiality of internal communications with staff lawyers within the company or group, with the result that a further evolvement of the case law to extend the protection of confidentiality to communications between staff lawyers and company employees already lacks justification on grounds of European law.

Pursuant to the latest judgement of the ECJ, it is now conclusively established that the use of confidential documents as evidence in antitrust proceedings of the European Commission is only impermissible if

  • this concerns correspondence with an external lawyer who does not occupy the position of an employee of the company in question and who is enrolled as a member of a bar or law society in a Member State of the European Union, and
  • the correspondence with the lawyer is related to the client's right to defence. The ECJ understands such correspondence as being all correspondence exchanged between the external lawyer and the company prior to the opening of the proceedings and after the opening of the administrative proceedings, and in connection with the subject matter of the proceedings or in reference to the ongoing proceedings (this also includes documents containing the wording or results of legal advice that was given by the lawyer over the telephone).

Scope of applicability of the case law of the ECJ

The ECJ's case law on the legal privilege not only relates to investigative proceedings regarding horizontal hardcore cartels (e.g. price-fixing agreements, market divisions), but also covers all review proceedings concerning violations of antitrust law, i.e. in particular also abuse proceedings and proceedings concerning the prohibited consummation of a transaction prior to merger control clearance.

Practical consequences

Since the most recent judgement of the ECJ simply confirms established previous case law and administrative practice, from the perspective of the legal advisors there should be no changes whatsoever as a result of the judgement. In cases where there is an obvious risk of incurring a fine, staff lawyers are advised to give internal advice orally, to the extent possible, and to consult external lawyers at the earliest possible opportunity.

No legal privilege in national antitrust proceedings of the German Federal Cartel Office

With regard to national antitrust proceedings of the German Federal Cartel Office [Bundeskartellamt], please note that German law does not provide for a comparable general and comprehensive protection of lawyers' correspondence to that applied in proceedings of the European Commission. Documents found on the business premises of the relevant company or on the business and/or private premises of the accused party can also be secured or seized if they are correspondence with an external lawyer.

This is not the case only once an external lawyer has been appointed as defence lawyer in an administrative offence proceeding. In this case, the authorities are barred from accessing any correspondence with the defence lawyer in said proceedings as of the time of the external lawyer's appointment as defence lawyer ("defence lawyer privilege"). The authorities are then not even allowed to seize this correspondence and use it as evidence if it is in the custody of the accused party.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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