OPINION OF SIR GORDON SLYNN — CASE 155/79

concerned is using delaying tactics, ingenuine question of principle is at stake, which case the competent national courtsin which case it will be right that that should make short shrift of it, or where aquestion should be properly considered.

V I I — C o n c l u s i o n s

It follows, in my opinion, that Article 1 (b) of the Commission's Decision of 9 July 1979 should be declared void and that the applicant is entitled to its costs as against the Commission.

If your Lordships share my view, the British Government and the CCBE, as successful interveners, who asked for costs, will also be entitled to them as against the Commission — see Anicie 69 (2) of the Rules of Procedure of the Court (the English text of which is, as I ventured to point out in Case 130/75 Praisv Council [1976] 2 ECR 1589, at pp. 1609-1610, defective). The CCBE did not in fact ask for costs until the hearing, but that has been held to be sufficient — see Case 113/77 NTN Bearing Co. v Council [1979] ECR 1185, at pp. 1192, 121C-1211, and 1274. As regards the French Government, I think that justice will be done if it is simply left to bear its own costs.

O P I N I O N OF ADVOCATE GENERAL SIR G O R D O N SLYNN DELIVERED O N 26 JANUARY 1982

My Lords,

investigation of competitive condition« concerning the production and distri- In February- 1979, officials of thebution of zinc metal and its allovs and zinc concentrates in order to venf\ that there is no infringement of Anieles ï»r> and 86 of the EEC Trean Thr applicants produced copies of mos: ot the documents. Some, however, were not produced; so far as relevant, on the basis of legal confidentiality, which entitled the

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applicants io withhold them. FollowingA record of the nature of the documents was made, which was communicated to the panies. Although the documents produced fall broadly into the categories· summarized by Mr Advocate General Warner at page 12 of his opinion, I think that in view of the importance of the case it is proper to identify more particularly the nature of the documents in issue.

The documents in issue can be divided into the following categories, first those asking for advice, second those giving advice and third those summarizing advice:

A — (1) requests for legal advice made by a solicitor employed by a company providing, inter alia, legal advice to the applicants ("the Service Company") destined for two barristers in private practice (Document No 1):

(2) requests for legal advice made by executives of the applicants and sent to a solicitor in private practice in England (Document No 5):

On 4 February 1981 the Court, being of the opinion that certain details (such as the date on which, and the place where, the documents were drawn up, the exact occupation and status of the author and the addressee, and sufficient information as to the nature of the contents of the documents) were not available, made an order that the oral procedure should be re-opened and that the documents should be sent to the Court in a sealed envelope, in order that a repon might be made on them.

(3) a telex suggesting that legal advice should be sought from solicitors in private practice in a third country relating to the law of that country, sent by an executive of the applicants to an executive of the applicants' immediate parent (Document No 13):

These documents were sent and the Judge-Rapporteur and I examined them.

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Service Company and sent by one executive of the applicants to another (Document No 11):

B — (1) a memorandum containing legal advice concerning the law of a third country sent by a solicitor qualified in that country and employed by a member of the group of which the applicants are a part, to the employees of another member of the group other than the applicants (Document No 2):

(2) a memorandum summarizing legal advice given by a solicitor employed by the Service Company and sent by an executive of the applicants to an executive of its immediate parent (Document N o 16):

(2) a letter containing legal advice concerning the law of a third country sent by a firm of solicitors in private practice in that country to a person employed by the applicants' immediate parent in the group (Document No 3) :

(3) a memorandum summarizing legal advice given by a solicitor in private practice in England sent by one executive of the applicants to another (Document No 12):

(4) telexes summarizing legal advice received from barristers and solicitors in private practice in a third country concerning the law of that country and passing between an executive of the applicants and an executive of its immediate parent (Document No 17).

(3) a letter containing legal advice sent from a solicitor in private practice in England to an executive of a member of the group other than the applicants (Document N o 7):

(4) letters containing legal advice sent by a solicitor in private practice in England to various executives of the applicantsThe parties were invited to state at the re-opened oral hearing their views on the law as to, and legal opinions relating to, the existence and extent of the protection granted in investigative proceedings instituted by public authorities for the purpose of detecting offences of an economic nature, especially in the field of competition, to correspondencethe Commission stated that it is "prepared to give an assurance that inspectors will be instructed not to use any knowledge which they may gain as a result of inspecting documents" for the purpose of deciding whether they are protected, and, secondly, that the inspector was authorized to look at documents only so far as was necessary to establish whether or not they should be used as evidence.

(5) a memorandum containing legal advice sent by a solicitor employed by the Service Company to an executive of the applicants (Document No 10):

(a) two lawyers,

(b) an independent lawyer and his client,

(c) an undertaking and a lawyer in a permanent contractual relationship, or who is an employee of the undertaking,

(d) a legal adviser to, and an employee of, an undertaking or an employee of an associated undertaking,

(e) employees of an undertaking, or different but associated undertakings, where the correspondence mentions legal advice given by an independent lawyer or a legal adviser serving one of the undertakings or other undertakings in the same group.

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reference is made to the answer, given in reply to Written Question N o 63/78 in the European Parliament asked by Mr Cousté, to the effect that the Commission "wishing to act fairly, follows the rules in the competition law of certain Member States and is willing not to use as evidence of infringements of the Community competition rules any strictly legal papers written with a view to seeking or giving opinions on points of law to be observed or relating to the preparation or planning of the defence of the firm or association of firms concerned. When the Commission comes across such papers it does not copy them". The Commission asserted, however, that the Commission's inspector could look at the documents and ask questions "as far as is necessary for the purpose of establishing whether they should be used or not". By a letter to the applicant's solicitors dated 31 October 1979 the Commission stressed that they had always accepted that the inspector need not read the letters in full. He was to be put in such a position that he would be satisfied "objectively and with reasonable certainty that the document is one which is protected under Community law". By its defence the Commission stated that it is "prepared to give an assurance that inspectors will be instructed not to use any knowledge which they may gain as a result of inspecting documents" for the purpose of deciding whether they are protected, and, secondly, that the inspector was authorized to look at documents only so far as was necessary to establish whether or not they should be used as evidence.

It seems necessary, first, to decide what really are the issues to be considered in this application ai this stage. As Mr Advocate General Warner shows in detail, the Commission has been prepared to accept that, whatever the strict legal position, it would not use certain documents. In the decision itself, the sole issue was whether there was a procedure by which the question of protection should be decided and that the only procedure which existed was that the inspector should be left to decide the question fór himself. If the document was used and, at the end of the day, a decision was taken that there had been an infringement, the company concerned could apply to the Court to annul the decision under Article 173 of the Treaty.

advice (even if they are not protected by the first principle), may not be used as evidence if they are found in the hands of the lawyer. Such documents need not be disclosed to anyone except the person responsible for deciding whether the document is protected or not. Such a principle applies only where the lawyer is being consulted qua lawyer and ceases to apply if the lawyer is himself assisting or participating in the unlawful activities of his client.

(3) there must be some person other than the lawyer and his client who is responsible for deciding whether a document is entitled to protection and in the present state of Community law that person is the Commission's inspector.

At the first oral hearing the Commission felt it right not to make submissions as to whether a principle of protection from disclosure existed as a matter of Community law. At the second hearing, counsel for the Commission submitted that four principles were relevant to the case, in the present sute of Community competition law, as facets of a general "principle of protection of legal confidence". These were as follows:

(4) where an authority, such as the Commission, has formally stated that it will not use certain documents as evidence (even when it is not prevented by law from using them in that way) enterprises are entitled to rely on that statement (unless it has been amended). If the Commission were in a particular case to use evidence of a kind which it said it would not use, that fact would be a ground for annulling the decision based on the evidence in question, if the evidence was important enough to make annulment of the decision appropriate.

(1) documents written to or by a lawyer which deal with the defence of a client in a procedure which has begun may not be used as evidence and may not be disclosed to anyone except the person responsible for deciding whether the document is protected by the principle or not. This principle applies whether the documents are found in the hands of the lawyer or his client and applies only where the lawyer is being consulted qua lawyer.

"Lawyer" is accepted by the Commission to cover both a lawyer in private practice and a salaried lawyer, employed by a company, so long as he is effectively subject to a comparable régime of professional ethics and discipline as is the lawyer in private practice in the Member State in which he practises.

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any question of procedure arose. The issue broadly is not how what appeared originally to be put forward by the Commission as an administrative concession should be implemented, but whether any principle of protection of legal confidence exists, and if so (a) its scope in relation to the documents in issue here, and (b) how a dispute about the right to claim benefit of that principle should be resolved.

As I understand the Commission's position, the fourth principle is accepted to be a principle of law as well as the other three, but on the basis of legal certainty or perhaps what in the common law would be called an estoppel.

During the second oral hearing, counsel for the Commission stated that the Commission did not any longer wish to use documents numbered 1-10 in the list of documents which until then were in dispute. No doubt whatever the outcome of the case they will in fact adhere to that statement. At first glance it may seem tempting to take a short cut and to ignore those documents for the purpose of this opinion and for the Court's decision. In my view it would be wrong to do so. The parties are still at issue about the real question. The Commission asserts the right to see them, even though it is prepared to waive that right: the company denies that right. Moreover, they belong to a category of documents which is central to the questions which remain to be decided. In view of the time and attention given by the Court and the parties to this issue, it is in my view right, and perhaps inevitable, that the documents should be considered as a whole.

It is plain that the initial position taken by the applicants and the Commission that this case was solely about procedure, and that issues about the limits of protection could be worked out later, cannot be accepted. Indeed, it seems to me that the CCBE and counsel for the French Government were right at the outset when they contended that it was necessary to decide whether there existed any right to be protected before any question of procedure arose. The issue broadly is not how what appeared originally to be put forward by the Commission as an administrative concession should be implemented, but whether any principle of protection of legal confidence exists, and if so (a) its scope in relation to the documents in issue here, and (b) how a dispute about the right to claim benefit of that principle should be resolved.

The Commission's investigative powers for the purpose of carrying out the duties assigned to it by Anicie 89 of the EEC Treaty, and provisions adopted under Article 87 of the Treaty, are so far as relevant conferred by Article 14 of Regulation No 17. It may "undertake all necessary investigations into undertakings and associations of undertakings" and, to that end, its authorized officials are empowered to examine books and business records, to take copies of them, and to ask for oral explanations. There is no reference to any exemption or protection which may be claimed on the basis of legal confidence. Is that silence conclusive that no such protection is capable of applying in any form and in any situation? In my view it is not. The essential inquiry is, first, whether there is a principle of Community law existing independently of the regulation, and, secondly, whether the regulation does on a proper construction restrict the application of that principle. The question is not whether a principle of Community law derogates from Article 14, but whether Article 14 excludes the application of a principle of Community law.

That general principles which have not been expressly stated in the Trean· or in subordinate legislaron may exist as pan of Community lav . the observance of which the Court is required to ensure. Accordingly, as I see it, in order to decide whether Article 1 (b) of the Commission's decision should stand it is necessary to resolve the questions:

(a) whether there exists a general principle of Community law which, subject to the third question, protects documents containing what have been called legal confidences, and the contents of those documents, from production and use in judicial, quasi-judicial or administrative proceedings; or

(b) if so, whether the documents in issue in the present case are covered by that principle;

and search for the 'best' and 'most general tendency of the national laws. In suppon it cites P. Reuter in Mélanges Rolin 1964, p. 273; the article by Judge Pescatore (supra) at pp. 654-655; Ipsen, Europäisches Gemeinschaftsrecht, 1972, p. 114; W. Ganshof van der Meersch, L'Ordre Juridique des Communautés Européennes, 1975, pp. 150 and 163; Louis, Ĺ 'Ordre Juridique Communautaire 1979, p. 164, and Zweigert, Novelles 1969, para. 1203.

That national law may be looked at on a comparative basis as an aid to consideration of what is Community law is shown in many cases of which Cases 3/54, Assider v High Authority [1954-1956] ECR 63, 28/76, LTU v Eurocontrol [1976] ECR 1541 at para. 3, 814/79, Netherlands* Rüffer [19Í0] ECR 3807, 4/73, Nold v Commission [1974] ECR 491 at para. 13; 3/65, Espėrance-Longdoz v High Authority [1965] ECR 1065 at 1090 may be taken as examples. Such a course is followed not to import national laws as such into Community law, but to use it as a means of discovering an unwritten principle of Community law (see for example Case 18/57, Nold v High Authority [1959] ECR 41 at 73-74, Case 36-38 and 40/59 Geitling v High Authority [1960] ECR 423 at p. 438 and at p. 450 (Mr Advocate General Lagrange); Case 11 /70 Internationale Handelsgesellschaft v Einfuhr- und Vorratssteile Getreide [1970] ECR 1125 at paragraphs 3 and 4 and pp. 1146-1147, Mr Advocate General Dutheillet de Lamothe). The suggestions made at times in this case, implicitly if not explicitly, that the applicants were trying to force into an unreceptive mould "There is complete agreement that when the Court interprets or supplements Community law on a comparative law basis it is not obliged to take the minimum which the national solutions have in common, or their arithmetic mean or the solution produced by a majority of the legal systems as the basis of its decision, The Court has to weigh up and evaluate the particular problem

In looking at national laws it does not seem to me that it can be a pre-condition of the existence of a rule of Community law that the principle should be expressed identically, or should be applied in identical form, in all of the Member States. Unanimity, as to a subject which is relevant to a Community law problem, may well be a strong indication of the existence of a rule of Community law. Total unanimity of expression and application is not, however, necessary. It is at best unlikely, not least as the Community grows in size. It seems to me highly probable that there are differences in the various Member States in the application of the principles of "la bonne administration de la justice", rejection of "un deni de justice" and in the "principe de proportionalité" referred to on page 643 of the article in Les Cahiers de Droit Européen. Yet such differences do not prevent such principles from being part of Community law. Indeed, in Case 17/74 Transocean Marine Paint Association v Commission [1974] ECR 1063 it was accepted that a right to be heard existed even though Mr Advocate General Warner found, in the relevant context, that the rule audiatur alteram partem existed only in some of the Member States. The fact that proceedings in one Member State may be criminal, in others civil, that judicial procedures differ, that for historical reasons different practices are adopted, different conditions apply» makes divergence inevitable. In my opinion, what has to be looked for is a general principle, even if broadly expressed. If that is widely accepted then it may, if relevant, be found to be p a r t of Community law. It is then for the Court to declare how that principle is worked out in the best and most appropiate way, to use Judge Kutscher's words, in the context of Community proceedings. Nor is the fact that in some Member States the general principle may have been modified or excluded, in certain contexts covered by legislation, fatal to the existence of the principle. It is for the Member States and (within their various powers) those who make the Community legislation to decide whether the general principle which exists should be modified or excluded.

Because of these divergencies in procedure and practice, it is, in my view, important not to fasten too closely on a detailed comparison of particular labels or rules. What matters is the overall picture. Thus the question is not whether "legal professional privilege" (a misnomer and the right of the client) is identical with "le secret professionnel" (the duty, inter alia, of the lawyer), which plainly it is not, but whether from various sources a concept of the protection of legal confidence emerges, e.g. in England from the "privilege" and any rules as to the protection of confidentiality, in France from an amalgam of "le secret professionnel", "les droits de la défense" and rules applicable to "le secret des lettres confidentielles".

The Court has received from the parties much detail as to the law and practice in the various Member States. I refer to it with some trepidation, partly because each member of the Court has infinitely more knowledge of the position in his own Member State than a lawyer from another jurisdiction; partly because disagreement as to what is the law of a particular Member State arose even during the oral hearing. Counsel for the French Government, apparently, does not accept that the CCBE have correctly appreciated or stated the law of France and other Member States, even though representatives of French Bars and the Bars of other Member States are associated with the CCBE, and even though lawyers from those Member States are quoted directly. He says they have got it wrong. For my own pan I do not accept his submission that United Kingdom counsel have not correctly stated the effect of the law of the United Kingdom, or his analysis of it. I am quite satisfied that in this particular area, he, in his turn, got it wrong by only looking at one pan of the subject. I do not say this in any sense by way of criticism. On the contrary the efforts which he (as well as other counsel) made to deal with the issues before the Court deserve tribute. I refer to these divergences only to illustrate the difficulties which the Court and the parties encounter if they seek to contrast too minutely the detailed ways in which confidentiality and the right to a fair trial are protected in the Member States; ways which are determined by the factors to which I have referred. This however is in no way fatal to the existence of some right of protection for legal documents. It merely emphasizes, to use Mr Advocate General Warner's phrase, that one must go to the heart of the matter.

In Belgium, it seems that confidential communications between lawyer and client are protected and cannot be seised or used as evidence. Although the basis of the rule may have been that information confided to the lawyer must be protected, it seems from the opinion of Monsieur l'Auditeur Huberlani and the decision of the Conseil d'État of 8 June 1961 (JT 1962, p. 171), that it also covers confidential advice given to the client. There exists also a more general principle which protects the privacy of correspondence — see Articles 10 and 22 of the Constitution.

In Denmark, the rule of the professional secret prevents lawyers from giving evidence of confidential information confided to them in their professional capacity and a lawyer can refuse to produce documents covered by professional secrecy. Communications between an accused person and his lawyer are protected in the hands of the accused under Article 786 of the Code of Procedure. This rule seems to apply also in civil proceedings.

In Germany, confidential communications to a lawyer are protected in his hands, and breach of the professional confidentiality by a lawyer is a criminal offence. Thus such documents in the hands of the lawyer cannot be seised (Article 97 of the Code of Criminal Procedure). Documents in the hands of the client can, it appears, be seised unless they come into existence after the commencement of criminal proceedings (decision of the Bundesgerichtshof of 13 August 1973, NJW 1973, p. 2035).

In France, breach of the rule of professional secrecy is a criminal offence and, although it seems that documents may be seised in some circumstances even in the hands of the lawyer, the importance of the rule is stressed in Lemaire Les règles de L· profession de l'avocat which has been provided for the Court. This rule appears to be closely linked with the right to a fair trial (les droits de la défense).

The principle of the "droits de la défense" appears to cover confidential documents passing in both directions between lawyer and client (see for example the decision of the Cour d'Appel de Paris of 13 November 1979, Gazette du Palais, 1980 Nos 90 to 92). Documents in the hands of the client are covered by the general principle of privacy defined in Article 9 of the Constitution. The power to search the client's premises is circumscribed by Articles 253 et seq. of the Code of Criminal Procedure.

In Luxembourg, rules of professional secrecy and "les droits de la défense", it would seem, protect legal confidences in the hands of the lawyer, and of the client after proceedings have begun, but little case law has been produced showing the application of these rules in practice.

In Ireland and the United Kingdom, although there may be differences in detail, broadly the law of the two Member States is the same and it is set out more fully in the opinion of Mr Advocate General Warner. It should be repeated, however, that it covers both (a) communications between a person and his lawyer for the purpose of obtaining or giving legal advice whether or not in connection with pending or contemplated legal proceedings and (b) communications between a person and his lawyer and other persons for the predominant purpose of preparing for pending or contemplated legal proceedings.

Dutch law forbids the revelation of confidences by persons exercising a profession, such as lawyers. Coupled with this there is a right to refuse to give evidence on matters covered by professional secrecy. These matters include not only the information revealed by the client but also, in the case of lawyers, the legal advice they have given (see, for example, the decisions of the Gerechtshof of the Province of Drenthe, 17 November 1969, W., p. 3161, and the Arrondissementsrechtbank of Rotterdam, 18 October 1954, NJ 1955 No 368). Article 98 of the Code of Criminal Procedure provides that, when the premises of someone bound by professional secrecy are searched, the doctrine of professional secrecy must be observed and documents covered by it cannot be seised. There appears to be no authority holding or denying that legal correspondence found in the hands of the client is protected.

In Italy, as in most of the Member States, the law forbids lawyers from giving evidence of the information confided in them by their clients and entitles them to withhold documents covered by the doctrine of professional secrecy. On the other hand, it seems that, in the case of criminal investigations, documents held by a lawyer may be seised unless they have been entrusted to him for the preparation of his client's defence. Protection is wider in civil proceedings but it does not, in any case, appear to extend to documents in the hands of the client. It seems that, in the case of lawyers, professional secrecy is a reflection of the right to a fair trial guaranteed by Article 24 of the Constitution (see de Leone, "Il segreto professionale: limiti ethe applicants and the body representing the Bars of all the Member States as being a fair and acceptable statement of the laws of the Member States. It seems to me significant that they were able to reach agreement as to the existence of the principles which are set out in the document which they prepared to read to the Court.

The fact that this principle of confidentiality between lawyer and client may be given effect to in different ways, and that it is not coextensive in its application at any point in time, in all the Member States, does not mean that the principle does not exist. In my opinion it should be declared to be a rule of Community law. The way in which and the extent to which it applies in Community law and in relation to Community transactions and procedures needs to be worked out to achieve the best and most appropriate solution in the light not only of considerations of the practices of the various Member States, but the interests of the Community and its institutions, Member States and individuals which are subject to its laws.

It is universally accepted that confidential documents of the kind to which I have referred in the hands of the lawyer are protected. If one considers the real purpose of the protection and gets away from labels and procedures, like legal professional privilege and "secret professionnel" which may not give the whole picture, I can for my part see no justifiable distinction between such documents in the hands of the lawyer and in the hands or the client. If the lawyer has one copy and the clients another, both should be protected. The request and the reply, if relating to legal advice, are of the same nature. To tell the client that if he leaves his documents at his lawyer's office they will be protected, but that, if he keeps them himself, they are not seems to me any indefensible and likely to encourage, e.g. the giving of oral advice if it is unfavourable advice, and the destruction or transfer to the lawyer's office of documents. It would be quite extraordinary that if the lawyer's documents were, by chance, left at the. client's premises, the day the inspector called, they must be produced, but that if the lawyer took his file away with him, they would not. In my opinion the rule covers communications between lawyer and client made for the purpose of obtaining or giving legal advice in whoever's hands they are and whether legal proceedings have begun or not. It covers also the contents of that advice (given orally or in writing), in whatever form it is recorded — whether in a letter or in a summary or in a note or in minutes.

The position of the lawyer who is employed as such by an undertaking has been much canvassed. As I understand it in some Member States full-time employment is incompatible with the full professional status of a lawyer (apparently in Belgium, France, Italy and Luxembourg): in others the employed lawyer remains subject to professional discipline and ethics. Where the lawyer who is employed remains a member of the profession and subject to its discipline and ethics, in my opinion he is to be treated for present purposes in the same way as lawyers in private practice, so long as he is acting as a lawyer. Cases can arise where the lawyer exercises other functions (such as in England those of a company secretary) and of course, any communication in such other capacity would not be covered. A lawyer in private practice who is a member or associate of a large firm may act for long periods for only one client. If his communications are protected, so it seems to me, should be those of the lawyer who is a member of the legal department of a company. I would reject any suggestion that lawyers (professionally qualified and subject to professional discipline) who are employed full time by the Community institutions, by government departments, or in the legal departments of private undertakings, are not to be regarded as having such professional independence as to prevent them from being within the rule. Accordingly I consider that counsel for the Commission is right to accept that, provided he is subject to rules of professional discipline and ethics, the salaried lawyer should for present purposes be treated in the same way as the lawyer in private practice. The same position, it seems to me, ought to apply to confidential communications between a lawyer qualified in one jurisdiction and a lawyer qualified in a different jurisdiction about the affairs of their mutual or respective clients.

The proper administration of the law and the rights of the individual are not of course the only aspects of the public interest. These may have to be balanced against other aspects of the public interest with which they may, or may appear to, conflict. A legislature may

documents in the hands of the client, the limiting or overriding of a principle of confidentiality does not seem to arise. The elimination of restrictive practices, or fetters on free competition, is such an interest and, obviously, at the present time an important one. Can it be said that there is a rule widely accepted in the Member States that the protection of legal confidence should yield to the powers needed to investigate alleged infringement of competition law?

According to a letter from the Bundeskartellamt submitted at the hearing, searches and seizures made in the context of "administrative fines" proceedings pursuant to the Gesetz gegen Wettbewerbsbeschränkungen (GWB) in Germany are expressly subject to the rules set out in the Code of Criminal Procedure. As a result, confidentiality, in so far as it is respected in German law, is upheld and documents found in the hands of the client may not be seised if they came into existence after the commencement of proceedings. On the other hand, investigations under Articles 46 and 51 et seq. of the GWB, which are similar to proceedings under Article 14 of Regulation N o 17, are not subject to any express limitations. It is nevertheless accepted by the Bundeskartellamt and by commentators that confidentiality is protected to the same extent and documents may not in any event be seised without an order of a judge. Silence does not remove the right of professional secrecy in the latter context, so that it may be doubted whether it does in the former, although there is, semble, no decided case on the subject.

In France it seems to be accepted that the silence of the law (i.e. Article 15 of Ordonnance No 45/1484) does override professional secrecy (see the decision of the Conseil d'État in the Appraillé case. Recueil des Arrets du Conseil d'État 1952, p. 512) unless the correspondence in question is "liée d'une defense". The liberal interpretation given to this expression by the Tribunal Correctionnel de Nanterre in its decision of 18 December 1980, if upheld on appeal, would bring the position in France broadly into line with that in Germany and, it seems, Belgium. This decision has been criticized, however.

In Denmark the relevant legislation gives no right to seise documents and a court order must first be sought in order to obtain their disclosure. So far this has not apparently been necessari, because the persons investigated have complied with requests to produce documents. However, since confidentiality in Danish law does not apparently extend to investigations in the context of administrative proceedings, where legislation often does not contain detailed provisions relating to powers of inspection, it has been speculated that the rules relating to criminal and civil investigations (which do preserve confidentiality) would apply, depending on the nature of the proceedings (see Giannini Diritto Amministrativo, Volume II, 1970, page 970 et seq.). This view again is challenged.

Articles 25 and 26 of the Greek Law No 703/1977, which empower the Service for the Protection of Competition to obtain any necessary' information and to search premises, expressly preserve confidentiality, referring to Anicie 9 of the Constitution and Articles 212 and 253 et seq. of the Code of Criminal Procedure.

Article 5 of the Law of 17 June 1970 of Luxembourg gives the Commission des Pratiques Commerciales Restrictives wide powers of investigation. Under Paragraph 7 (2) of the First Schedule to the Restrictive Practices Acts of Ireland expressly subjects the powers of the Restrictive Practices Commission, to examine witnesses on oath and require them to produce documents, to the doctrine of legal professional privilege. The examiner of restrictive practices has extensive powers similar to those in Article 14 of Regulation N o 17 but Section 15 of the Restrictive Practices Act allows a person under investigation to apply to a court for a declaration that the exercise of the examiner's powers are not warranted by "the exigencies of the common good". The Irish concept of legal professional privilege, like the English, is justified as being in the public interest (and may therefore be held to be for the common good) but the Restrictive Practices Act seems to require the Irish courts to assess the public interest for and against the exercise of the examiner's powers. The Commission des Pratiques Commerciales Restrictives is purely a fact-finding body with no decision-making power (Anicie 3 of the law of 17 June). Its function is to carry out investigations at the request of the Minister and to draw up a report (which may contain the dissenting opinions of the members of the Commission). Enforcement of the law is a matter for the Minister and, from his decisions, an appeal lies to the Conseil d'État. The Minister cannot directly impose a fine; at most he can prohibit a particular practice and penal sanctions may be imposed if his decision is not complied with (Articles 7 and 8). As a result, the position in Luxembourg is different from that obtaining under Regulation N o 17. The Commission is both investigator and judge and can impose fines.

It is said that silence regarding the principle of confidentiality indicates that it is overridden entirely. Reliance has been placed on the legislative history of Regulation N o 17 to show that the Council considered the question of limiting the Commission's powers in this way and then rejected it. While entertaining doubts as to whether it is permissible to interpret a regulation by reference to its legislative history·, Mr Advocate General Warner took the view that the Council had not deliberately decided against the application of any principle of confidentiality. At the second hearing, his conclusion was attacked by counsel for the French Government and the Commission.

Legislation in the United Kingdom expressly preserves confidentiality (see Section 85 of the Fair Trading Act 1973, Section 37 of the Restrictive Practices Act 1976 and Section 3 of the Competition Act 1980). It seems likely that, in England, an express provision would be required in order to restrict or override legal professional privilege.

Whilst I share those doubts, in view of the second hearing it is necessary to consider again whether the legislative history of Regulation No 17 in any event clearly expresses the intention of the draftsmen. The preamble states that the Commission must have the power to require production of the information and carry out the investigations necessary to bring to light the restrictive practices prohibited by the Treaty. The regulation contains four provisions giving effect to this, Anieles 11 to 14. As can be seen from a comparison of the original draft, the amendments proposed by the Parliament's Internal Market Committee (both to be found in the "Deringer Report", European Parliament Document 57/1961), the Parliament's amendments (JO 73 of 15. 11. 1961, p. 1409) and the final version, extensive changes were made to what is now Article 11 but, apart from a redrafting of Anicie 14 (6), only minor textual amendments were made to Anieles 14 (2), (3) and (5).

As far as these anieles were concerned, the Committee raised several points concerning the general principle observed by States founded on the rule of law. In this context, it said this: "toute personne tenue de fournir des renseignements doit avoir le droit de refuser le témoignage tout comme le secret professionnel, par exemple des avocats et des expens-comptables, doit être garantie. En cas de perquisition, il faut prévoir l'intervention du tribunal du fait que d'après la loi fondamentale allemande, par exemple, des perquisitions ne peuvent étre faites que sur mandat du juge. La possibilité pour l'intéressé d'introduire un recours devant la Cour de justice contre la décision de la Commission ne remplace pas le mandat de perquisition du juge, car les searches should be subject to the issue of a judicial warrant. Nevertheless, if the Parliament's proposed amendment to Anicie 11 could be construed as a reference to professional secrecy, the question arises. why no similar amendment was proposed in relation to Anicie 14? There is no clear answer.

The only proposed change, however, was to the draft Article 11, to which the following paragraph was added:

"Sont tenus de fournir les renseignements demandés les propriétaires d'une entreprise ou leurs représentants et, dans le cas de personnes morales, de sociétés ou d'associations n'ayant pas la personnalité juridique, les personnes chargées de les représenter selon la loi ou les statuts. Les personnes tenues de fournir les renseignements peuvent refuser de répondre aux questions lorsque ladite réponse risque de les exposer elles-mêmes ou d'exposer une des personnes pouvant refuser de témoigner en venu du code national de procédure, ou les entreprises ou les associations d'entreprises qu'ils (sic) représentent, à des sanctions pénales."

When Regulation No 17 was adopted, the second sentence was omitted. It is quite clear that this sentence corresponds to no known doctrine of professional secrecy in any of the Member States. Its closest resemblance is to the rule, recognized in German law (and also English law for that matter), that a person may refuse to answer incriminating questions. Paragraph 121 of the Deringer Repon shows the close attention being paid to German law.

Not all the repon's recommendations were proposed as amendments to the draft and it is possible that the wish that professional secrecy be protected had the same fate as the suggestion that searches should be subject to the issue of a judicial warrant. The only proposed change, however, was to the draft Article 11, to which the following paragraph was added:

Such information as to the legislative history as is available is far from giving a clear indication of the intentions of the draftsmen. The most that 1 think can be said is that a limitation on the measure adopted by a Community institution " . . . is to be interpreted — if at all possible — so that it is compatible with the superior law of the Treaties and the general principles of law which, too, are attributed a status superior to that of subordinate law. Other interpretations which would lead to incompatibility with the superior law, and thus to the inapplicability or to the invalidity of the measure adopted by the institution, are to be disregarded" (page 38).

It is impossible to accept the argument put forward that disclosure of documents to an authorized official pursuant to Article 14 does not in any way breach the confidence widely protected in Member States, as has been shown from the summary already given. Nor do I accept the argument that proceedings under Article 14 are purely administrative and fact-finding so that the rule cannot apply in any event. There is no clear cut division in the procedure under Regulation N o 17 between a fact finding and a quasi-judicial stage in the investigation. The same Directorate-General is involved throughout. I refer in any event to what was said by the Court in Case 85/76 Hoffmann-La Roche v Commission (1979) ECR 461 at para. 9, "Observance of the (right to a fair trial) is in all proceedings in which sanctions, in particular fines or penalty payments, may be imposed, a fundamental principle of Community law which must be respected even if the proceedings in question are administrative proceedings". In my opinion, therefore, the rule of protection is not excluded by the nature of the process.

I am accordingly of the opinion that the view taken by the Commission that as a matter of law it cannot be said that is no rule for the protection of legal confidence in Community law, was correct. That rule, however, is wider, as I have described earlier, and, in my view, more logical than the limited rule proposed by the Commission. It is a general rule of Community law to be derived from a consideration of the general principle applied, albeit in different ways, in the Member States. It does not depend on an administrative concession, nor is it derived from any administrative concession, nor is it derived from any

In his paper on methods of interpretation in 1976, Judge Kutscher said that a concept of estoppel flowing from an answer given to a parliamentary question, and which, in theory at any rate, it might one day be said could be abrogated for the future. It is not excluded in the area of competition investigations: nor does Article 14 prevent it from applying.

Some of the documents, e.g. Document No 13, contain matter not falling within the categories of (a) communications between lawyer and client (or lawyer and lawyer) and of (b) records of such communications to which I have referred. Those parts must be produced. There is not in practice any real difficulty in covering up the parts which are protected. This apart, I consider that all the documents which remain in issue are protected from production to the Commission.

One particular problem in this case relates to the documents prepared by or for members of the Rio Tinto Zinc Group other than the applicants. As the Court indicated in Case 48/69 ICI v Commission [1972] ECR 619 at p. 662, the reality of the relationship between the members of a group of companies forming one economic unit may mean that their separate legal personality has to be treated as a formal rather than a substantial distinction, particularly in the field of competition. Moreover, legal advice prepared by either lawyers employed or those in private practice retained by one member of the group may in fact be requested on behalf of all the members of the group. This is certainly the case where exists, as here, one member of the group whose function it is to supply legal advice to the group as a whole. In this situation it seems right that the common interest of all the members of the group should be regarded as justifying the retention of confidentiality in respect of documents drawn up by or for one member of the group and found in the possession of another.

with him that an independent tribunal must decide the question. It is too simplistic a view to say that the inspector can put out of his mind, wholly, any protected material which he may read in the course of making his decision. Judges sometimes have to do it, but their training is different and even for them it is not always an easy task. The English position has been overstated in the arguments on behalf of the French Government since not infrequently a decision as to whether documents are protected is taken as a separate process and by a different judge from the trial judge. Moreover in this area it seems to me that it is important to have regard to the sense of injustice which may be felt by those who are subject to investigation. The enterprise concerned will no doubt often be left uncertain as to whether the inspector really has put the matter aside or whether consciously or not he has gone on to ask questions or pursue enquiries which can only have been derived from protected information. This is in no sense a reflection on the good faith or intention of the inspector. It derives simply from the difficulty of knowing whether he has been influenced unconsciously by what he has read and which ex hypothesi he should not have seen.

I cannot share the equanimity with which the Commission suggests that all can be put right in the end. It is said that, if protected information is used to lead to a decision that there has been an infringement, that decision may be set aside by the Court. Such an approach to my mind leaves out of account important considerations. The protected information (ex hypothesi wrongly used), may be the cornerstone of the Commission's case; it may appear at an early stage in the enquiry; the enquiry may be — and often is — lengthy, demanding great time and effort on the pan of the Commission's staff. The cost to the Community, and therefore eventually to the taxpayer, and to the private enterprise concerned, may be huge. It is to my mind more satisfactory, more fair and more efficient if this kind of point can be resolved at an earlier stage. Unless Community legislation establishes that it is not possible to resolve such issues at an earlier stage. I consider the arguments in favour of obtaining a ruling, before the documents are seen and used, to be overwhelming. It is in any event wrong that such protected information should continue to be used derived from the subsequent proceedings, in my view, to depart from Mr Advocate General Warner's recommendation that the Commission should also pay the costs of the successful interveners, the United Kingdom Government and the CCBE, and that the French Government should bear its own costs.

In this context I find the answer to Mr Cousté unsatisfactory — the Commission's undertaking is only not to use the document. It seems to me that if the protection has come into existence the Commission should not see the document. The public interest which gives rise to the principle of confidentiality comes into existence at the moment when advice is required and given, and it continues thereafter irrespective of when the question of production for inspection arises.

The public interest which gives rise to the principle of confidentiality comes into existence at the moment when advice is required and given, and it continues thereafter irrespective of when the question of production for inspection arises.

Community law are complementary and not conflicting. Mr Advocate General Warner has put forward a number of considerations in favour of the matter being resolved by national courts as a matter of Community law, although he rejects, as I would reject, the suggestion put forward that protection should depend on the national law of the Member State in which the documents are found. The course he has suggested is obviously one possible course, although some difficult) may arise form the fact that in some jurisdictions it appears that it is the Bâtonnier, rather than a Court, who decides whether the documents are privileged.

There seems to me an alternative course which I do not consider to be subject to all the disadvantages which have been attributed to it. It seems to me that once the question of principle has been decided by the Court, the issues in most future cases are likely to be short. In the light of experience in comparable matters, I do not accept that the floodgates would be open as is contended. Nor should any weight be attached to the references made to delays and tactics which it is said occur in American proceedings. American lawyers are the first to point out that such delays do not form part of the United Kingdom system. The Court has methods available to it to curb unmeritorious applications. Even if costs against the undertaking do not deter, few lawyers acting in this kind of work are likely to risk serious criticism by the Court in its judgment by bringing hopeless disputes as to the documents before it.

Accordingly, it seems to me that the better course is that when a dispute does arise the matter should be referred to this Court as has been done in the present proceedings.

It is, then, my opinion thai, subject to what I have said about pans of the documents in dispute, Anicie 1 (b) of the Commission's Decision of 6 July 1979 should be declared void and the Commission should be ordered to pay the applicants' costs. There is no reason to depart from Mr Advocate General Warner's recommendation that the Commission should also pay the costs of the successful interveners, the United Kingdom Government and the CCBE, and that the French Government should bear its own costs.