Microsoft day…

Today most of the blogs I hve read were concerned with the Microsoft decision. The other case is also part of the battle of the BIGs against the Commission… Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd v Commission of the European Communities.

From the press release: "As regards the types of privileged documents, the Court holds that internal company documents, even if they have not been exchanged with a lawyer or have not been created for the purpose of being sent to a lawyer, may nonetheless be covered by protection of confidentiality of communications between lawyers and their clients, provided that they were drawn up exclusively for the purpose of seeking legal advice from a lawyer in exercise of the rights of defence. On the other hand, the mere fact that a document has been discussed with a lawyer is not sufficient to give it such protection. The Court adds that the fact that a document has been put together under a competition law compliance programme does not suffice by itself to confer protection on that document. Such programmes often encompass in their scope duties and information which go beyond the exercise of the rights of defence.

Finally, the Court rejects the argument advanced by Akzo Nobel and Akcros concerning extension of the personal scope of protection of confidentiality of communications between lawyers and their clients beyond the limits laid down by the Court of Justice. In that regard, the Court of First Instance notes that the Court of Justice expressly held that the protection only applies to the extent that the lawyer is independent, that is to say, not bound to his client by a relationship of employment, and expressly excluded communications with in-house lawyers. The Court states that, even though it is the case that specific recognition of the role of in-house lawyers and the protection of communications with such lawyers is relatively more common today than when the judgment in AM & S was handed down, it is not possible, nevertheless, to identify tendencies which are uniform or have clear majority support in that regard in the laws of the Member States. The evolution of competition law since that judgment does not justify an alteration of that case-law either, it not being contrary to the principle of equal treatment or the free movement of services. Consequently, the Court holds that the exchange of emails with a member of Akzo Nobel’s legal department should not be covered by the protection of confidentiality of communications between lawyers and their clients.

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