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in Article 1 (b) of the contested decision and listed in the appendix to AM & S Europe Limited's letter of 26 March 1979 to the Commission.

3. The Court will, before the date of the hearing, draw up a report on those documents in a form which it considers appropriate so as not to prejudice its final decision; this report will be notified to the parties.

4. The applicant, the defendant and the interveners will, at the hearing, be heard on questions which will be particularized at a later date.

Luxembourg, 4 February 1981.

A. Van Houtte J. Menens de Wilmars Registrar President

I — Introductory Article 20 of Regulation No 17, which is headed "Professional secrecy", imposes on the Commission and the competent In this action, which is brought against authorities of the Member States, their the Commission under Article 173 of the officials and other sen-ants, an obligation EEC Treaty, the applicant is an English not to disclose information acquired by company called AM & S Europe Limited. them as a result of the application of the It is a subsidiary of an Australian regulation and "of the kind covered by company, Australian Mining and the obligation of professional secrecy". Smelting Limited. Both companies The reference there to "professional belong to the well-known Rio Tinto Zinc group. A subsidiary of the applicant secrecy" is obviously a reference to the owns and operates a zinc smelter at concept known in French law for Avonmouth, near Bristol. instance as "le secret professionnel", which is a wide concept in the sense that it applies not only to lawyers but to On 10 February 1978, the Member of anyone whose occupation leads him to the Commission responsible for be entrusted which confidential infor- competition policy ordered investigations mation, e.g. members of the medical to be carried out under Article 14 of profession and government officials. Regulation No 17 into a number of undertakings in the zinc industry, which were suspected of having jointly fixed It might be suggested, though no one did prices and conditions of sale, controlled so in argument before us in this case, production and shared out markets, in that the express reference in Anicie 20 to breach of Article 85 of the Treat)'. The "professional secrecy" and the absence applicant was one of those undertakings. of any express reference to any such concept elsewhere in the regulation must be taken to mean that the authors of the Article 14 of Regulation N o 17 is so regulation intended to exclude the familiar to your Lordships that I do not application of any such concept think it necessary to read it. The Court otherwise than in the circumstances was recently concerned with it in Case described in Article 20. That would 136/79 National Panasonic (UK) Ltd v however be, so it seems to me. a Commission (26 June 1980, not yet somewhat rash application of that reported). The questions at issue in this unreliable maxim expressio unun esi case are, however, different from those exclusio alterius. that were at issue there.

Parliament to the Commission's proposal what is now Article 11 designed to give for what became Regulation N o 17. As effect to the criticisms it had expressed in your Lordships know, I entertain grave paragraph 121, and in particular to the doubt whether it is permissible to view that owners or representatives of interpret a Council Regulation by undertakings called upon to supply reference to its "legislative history". Be information should not be required to that as it may, I do not think that, in this answer incriminating questions. There instance, an examination of the was no mention in the proposed "legislative history" of Article 14 leads amendments of "le secret professionnel". to the conclusion suggested by the The formal opinion of the Parliament, Commission and the French Govern- embodied in a resolution dated ment. 19 October 1961, did not differ in any material respect from what had been proposed by the committee.

Regulation No 17 was adopted by the When one turns to the amendments Council on 6 February 1962. We were proposed by the committee (at pp. 44 to told by the Commission that the absence 46 of its report) one finds that in fact it from Article 14 of any reference to proposed none to what is now Article 14. communications between lawyer and It proposed a series of amendments to client did not seem to have given rise to

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istrative proceedings. Until now, the The authors refer the reader instead to protection of professional privilege has the Edward Report, and go on: not proved to be a particularly sensitive issue in the practice of the Commission and the extent of the appropriate "In the area of Community law, the protection is open to discussion. It is problem had been discussed during the clear, though, that this protection ends deliberations of the European Parliament where the lawyer himself assists or parti- concerning the adoption of Regulation cipates in illegal activities of his client.

continue: On 22 June 1978 the Commission gave "After the enlargement of the Com- its official view in answer to a question munities the discussion has been revived put down by Mr Cousté in the Par- on the background of the particularly liament (Written Question No 63/78). extensive protection of professional The Commission's answer to that privilege in the UK and Ireland (which question was as follows:

Community competition legislatior does not provide for any protection for lega! On 20 February 1979 three officials of papers. But the Commission, wishing to the Commission (whom I will call "the act fairly, follows the rules in th- inspectors") appeared at the applicant's competition law of certain Member premises at Bristol, accompanied by an States and is willing not to use as official of the Office of Fair Trading, evidence of infringements of the which is the "competent authority" in Community competition rules any strictly the United Kingdom for the purposes of legal papers written with a view to Article 14. The inspectors were armed seeking or giving opinions on points of with "authorizations to investigate" law to be observed or relating to the issued under Article 14 (2). Those were preparation or planning of the defence of served on the applicant's Managing the firm or association of firms Director, Mr A. T. Thomson, and the concerned. When the Commission comes investigation proceeded on that and the across such papers it does not copy them. following day, in the presence of two representatives of the applicant's solicitors. At the end of it the inspectors Subject to review by the Court of Justice, left taking with them copies of about 35 it is for the Commission to determine the documents. They also left with Mr nature of a given paper. Thomson a written request for further documents relating to certain specified matters. Lastly, the Commission would remind the Honourable Member that, by virtue of Article 20 of Regulation No 17/62 of Mr Thomson responded to that request the Council, Commission staff are bound by a letter dated 26 March 1979, with by an obligation of professional secrecy which he sent to the Commission seven in all matters relating to the enforcement files of documents. He told the of Articles 85 and 86 of the EEC Commission however, in that letter, that Treaty." the applicant's solicitors, during their review of the documents, had indicated that they felt that some of them were "covered by the doctrine of legal I turn back to the facts of this case. privilege". For that reason those docu- ments were not produced. Descriptions of them were set out, in seventeen numbered paragraphs, in an appendix to I l l — T h e facts of the case the letter.

Mr Thonson suggested that, should the Clearly neither the undertaking Commission "need further confirmation concerned nor its legal advisers can be regarding the privileged documents or the ultimate or only arbiter either as to the deleted passages", it should contact questions of fact or of law, as to whether the applicant's solicitors to discuss the any given document is one of these kinds matter. of documents and was written in circumstances which would justify its not being used. On 5 April 1979 the solicitors wrote to the Commission enclosing the promised statutory declaration. Under existing Community law, and subject to review by the Court of Justice, it is for the Commission to determine The Commission did not follow up Mr whether a given document should be Thomson's suggestion of discussions used or not. Therefore it is necessary for

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AM & S Europe Ltd to allow the Article 2 provided that the investigation Commission's inspector to look at the should begin on or after 9 July 1979. documents, and to ask questions in connection with them, as far as is necessary for the purpose of establishing whether they should be used or not. If On 25 July 1979 two of the the inspector considers that they should Commission's inspectors who had carried not be used, he will not take any copies out the earlier investigation in February and the documents will not be used sub- attended at the applicant's premises at sequently by the Commission as evidence Bristol and served the Decision. They of any infringement." then carried out a further investigation at those premises, which lasted until 27 July.

Article 1 of the Decision required the The applicant declined to show the applicant to submit to an ivestigation at inspectors the entirety of the documents its premises at Bristol and Avonmouth referred to in Article 1 (b) of the and in particular to produce for exam- Decision. Its solicitors told the inspectors ination the business records required by that, in their view, Community law did the Commission officials responsible for not require the applicant to disclose to the investigation "which are in whole or them the contents of those documents, in part connected with the subject of the but that they were willing to let the inquiry". The Article then set out in inspectors see parts of the documents in paragraphs lettered (a), (b) and (c) three question so that they could satisfy categories of business records which themselves that they were indeed were "in particular" to be produced. privileged. The inspectors indicated that Paragraph (a) specified the documents they were unwilling to proceed on the that were the subject of the written basis of seeing pans only of the request made to Mr Thomson on documents. The applicant's solicitors 21 February and some others. Paragraph proposed that the matter be discussed at (b) specified "all documents for which a meeting to be arranged between the legal privilege is claimed, as listed in the applicant's legal advisers and represen- appendix to AM & S Europe Limited's tatives of the Commission in Brussels. letter of 26 March 1979 to the The investigation was then halted as Commission". Paragraph (c) specified respects the documents for which the complete texts of the documents privilege was claimed, pending such a from which passages had been deleted. meeting.

The applicant's counsel (Mr Jeremy Lever, QC), relying to some extent on the passage in the preamble to the Decision stating that it was necessary for In the upshot, all that was agreed the inspector "to look at the documents, between the parties at the meeting was and to ask questions in connection with that the dispute between them would them, as far as is necessary for the have to be brought before this Court by purpose of establishing whether they means of proceedings taken by the should be used or not", proposed a applicant under Article 173 of the Treaty procedure under which enough of each to challenge the Commission's Decision; document would be shown to the and that, if such proceedings were taken, inspectors to satisfy them of its privileged the Commission would, until the Court status. He emphasized that, if the had given judgment, refrain from inspectors were allowed to see the whole imposing any fine or penalty on the of a document, its confidentiality would applicant for failure to comply with the be lost, particularly as the Commission, Decision. whilst stating that it would not use as evidence a document that had been written with a view to seeking or giving legal advice, had never said that its inspectors were debarred from using Accordingly, on 4 October 1979, the knowledge acquired by them from the applicant commenced the present action, perusal of such a document. Mr Lever in which it claims a declaration that added that if, upon being shown what Article 1 (b) of the Decision is void or, the applicant's advisers considered was alternatively, void "insofar as ¡t enough of a document to enable "any necessarily requires the disclosure to the reasonable inspector" to judge whether it Commission's inspector of the whole of was privileged, the inspector should still each of the documents for which the feel unsatisfied, there would be a clear applicants claim protection on grounds of legal confidence".

— the document is to be inspected only "On reconsideration, the services of the as far as is necessary for the purpose Commission consider that the proposal of establishing with the appropriate put forward on behalf of AM & S at the degree of certainty whether it is meeting on 18 September 1979 and the protected or not; practice thought appropriate by the Commission may not be as different as had previously appeared to be the case. — the extent to which it may be necessary for the inspector to see the text of the document will depend on Accordingly this letter is written to all the circumstances. In practice it suggest that the documents now in would normally be sufficient for him question should be shown to the rep- to see the first and last pages of the resentative of DG IV on a basis similar document and the headings, if any, to that outlined by Mr Lever. This is of provided that these clearly show the course without prejudice to the legal nature of the entire document. In arguments of either party in the cases where for any reason such a proceedings before the Court or in any disclosure does not permit the difference of opinion which may arise question of protection to be over whether particular documents are determined with the appropriate protected, and without prejudice to degree of certainty, the inspector further clarification by the Commission must have a right to see other sub- of its intended practice. stantial parts of the document (in addition of course to obtaining The services of the Commission have evidence outside the text of the always considered that, depending on the document itself if necessary).

I hope that this letter may be a sufficient the "legislative history" of Article 14. In basis to enable you to meet with that part also the Commission referred to Commission officials again. If so, it the Edward Report, to the paper written would be useful if you had with you for the FIDE Congress by Drs copies of all the documents in question Ehlermann and Oldekop, and to the Iv answer given by the Commission to Mr Cousté's Parliamentary Question (No 63/78). The Commission then went on to discuss two sources of authority on English law, which, in my opinion, it has The offer contained in that letter was misunderstood: the Law Reform declined on behalf of the applicant, mainly because the Commission did not Committee's 16th Report on "Privilege thereby resile from its view that its in Civil Proceedings" (Cmnd. 3472) and inspectors were, in the last resort, the decision of the House of Lords in entitled to see as much of a document as Waugh v British Railways Board [1980] they thought fit before deciding whether AC 521. (I shall discuss those authorities it was privileged. in a moment). The Commission concluded that "the question whether protection should be given for legal confidence, and if so how far it should be given and by what mechanism it On 17 December 1979 the Commission should be controlled, are questions of lodged its defence, whereby it made two policy to be decided pragmatically further concessions. The first was that its according to circumstances" and not Decision was to be interpreted as questions of principle. The Commission meaning that "the inspector is auth- expressed its agreement with the orized to look at documents for which applicant that "the issues in this case are protection is claimed only 'as far as is entirely questions of procedure". In the necessary for the purpose of establishing second pan of the defence it argued in whether they should be used or not', i.e. favour of a procedure "on the lines set used as evidence". The second was that out in" its letter of 31 October 1979. "the Commission is prepared to give an assurance that its inspectors will be instructed that they are not to use any knowledge which they may gain as a The applicant in its reply stated "the very result of inspecting documents for the narrow issue that divides the paraes" to purpose of deciding whether they are be: "In order to verify claims for protected". Reliance was placed on protection of documents under the behalf of the Commission, in subsequent principle of legal confidence, is the argument before us, on the fact that it Commission entitled, as it claims, to had made those concessions. inspect the documents for which the claim is made? Or, as the applicants claim, must the Commission take advantage of other means of verification that do not involve the Commission itself The Commission's defence, apan from gaining knowledge of the legal announcing those concessions, fell into confidences that are to be protected?" two parts. The first part consisted of a general discussion of the question of the protection of "legal confidence" in Community law. It was there that the The view that the issue in the case was a Commission put forward its contention, narrow one, relating only to the with which I have already dealt, about procedure whereby the question whether

Of the interveners, the British and There are thus in my opinion two major French Governments both stated their issues in this case. views on the question of substantive law, the British Government contending that The first is whether the exercise by the the concept of "legal professional Commission of its powers under Article privilege" or "confidentiality" or "secret 14 of Regulation No 17 is subject to a professionnel" formed part of "the law" principle affording, as of right, of the Community in the sense borne by protection against the disclosure of that expression in Article 164 of the communications passing between a Treaty, and the French Government lawyer and his client for the purpose of contending the contrary. Neither seeking or giving legal advice. The Court government, however, developed the is not, I think, called upon, if it holds in point at all fully in its written obser- favour of the existence of such a vations. The CCBE, on the other hand, principle, to define in this case its precise pointed out that "Questions of scope, for instance to say to what extent procedure do not arise in vacuo" and it may apply where the communications that it would be necessary for the Court, are between an undertaking and a lawyer before it could decide the procedural employed on its own staff (an "in- question, to decide whether there was a house" lawyer), or may not apply where, principle of Community law affording, in the words of Drs Ehlermann and as of right, protection against disclosure Oldekop, "the lawyer himself assists or of confidential communications between participates in illegal activities of his lawyer and client, and, if so, what its client". scope was. The CCBE accordingly made very full written submissions on those The second issue is, if such a principle questions. exists, as to the correct procedur for giving effect to it. The Court agreed with the CCBE and invited the parties and the intervening governments to make submissions at the V — T h e issue of principle hearing on those questions of principle.

said, would at least secure that the derived from them any general principle expectations of those who obtained legal that might apply! The French advice in each Member State were not Government went so far as to suggest disappointed: the same rights could be that the present case represented an invoked against the Community auth- attempt to foist on the Community what ority as against national authorities. was no more than a domestic rule of Moreover the adoption of that solution English law. would act as a spur to the enactment of Community legislation on the subject. The British Government cited, as affording some support for such an approach, Case 267/78 Commission v Wy[1980]ECR31. The French Government's first proposition is unquestionably correa. This Court, however, has never regarded the absence of an express provision as precluding it from holding that a general principle of law could affect the In my opinion that solution will not application of Community legislation. do. As die British Government itself Were it otherwise, Community law acknowledged, the preamble to Regu- would admit, for example, of no lation No 17 repeatedly refers to the principle of proportionality of no need for Articles 85 and 86 of the Treaty protection for legitimate expectations, of to be applied in a uniform manner in the no right to be heard (except where Member States, and it does so specifi- expressly provided for) and of no cally in relation to the Commission's guarantee of fundamental human rights. powers to undertake investigations. Case The French Government referred to 267/78 is in my opinion distinguishable, Case 41/69 ACF Chemie/arma v because the Community legislation there Commission [1979] 2 ECR 661, where in question did not confer powers of the Court held that it could not write investigation directly on the Commission into Regulation No 17 a period of itself; it merely enabled the Commission limitation within which the Commission to be "associated with" inspection must initiate proceedings against an measures carried out by the national undertaking. That case is not, however, authorities. in my opinion, in point, because there can be no general principle about the length of a limitation period, if any. The imposition of it necessarily involves a choice that can be made only by a legislative act. Having regard to the attitudes adopted by the parties and by the other interveners, the French Government bore alone the burden of arguing that there was no principle of Community law restricting the powers of the Commission So the real question here is whether or under Article 14 of Regulation No 17. In not the laws of the Member States evince so doing the French Government relied the existence of a general principle of the mainly on two propositions: (i) that there kind in question. I agree with the CCBE was no express provision of Community that, if such a principle can be distilled law imposing such a restriction and from them, it matters not if its (ii) that the relevant laws of the Member conceptual origin, the methods wherebv States were too disparate for there to be it has been developed, or even the scope

of its application in detail, differ from so that it is extinguished if the client Member State to Member State. waives his right to performance of it. In other countries (e.g. France) the obligation is considered to be "d'ordre publique", so that waiver by the client is not enough; the I have already said that I did not propose lawyer retains a discretion whether to analyse or even to summarize the or not to disclose the contents of the contents of the Edward Report. Nor do I communication. Incidental differ- propose to attempt an analysis of all the ences such as those do not, how- further authorities that have been placed ever, in my opninion, go to the before the Court as a result of the heart of the matter. researches undertaken by the CCBE and by counsel for the applicant since the Edward Report was written. From an examination of that wealth of material, which covers the laws of all the Member (iii) In each country the development of States except Greece (because the case the law has been largely conditioned was argued before the accession of by procedural rules characteristic of Greece to the Community) and also the the legal system of that country. In laws of some non-member States, certain England, for instance, much of the obvious conclusions can be drawn : law has been developed in the context of "general discovery" in civil proceedings. That is a procedure under which, at an interlocutory stage in a civil action, (i) As the French Government each party is required to disclose to conceded, some protection for the the other all the documents in his confidentiality of communications possession, custody or power between lawyer and client is given relating to matters in question :r, the by the laws of all the Member action, whether or not such States. In every Member State the documents would be admissible in hard core of the relevant law is that evidence. Documents covered by a lawyer cannot be called upon to "legal professional privilege" «re give evidence of what he has been exempt from such discovery. The told by his client. But everywhere procedure has, I believe, no exact the protection extends beyond that. equivalent in the legal system of any non-common law country — not even in the Scottish system. In Belgium and France on the other hand, many of the authorities are (ii) In all Member States the protection concerned with the powers and is afforded primarily by imposing on obligations of the "juge d'instruc- the lawyer an obligation not to tion", particularly when carrying disclose the contents of those out a search at the professional communications. In some countries chambers of an "avocat". The "juge (e.g. France) a breach of that d'instruction" has, as we learned in obligation by the lawyer is a Case 267/78, no direct equivalent in criminal offence. In others (e.g. many other Member States. There England) it is only a civil wrong. In again, however, such incidental some countries (e.g. England) the differences do not, in my opinion, obligation is owed only to the client, go to the heart of the matter.

(iv) To some extent also the of preparing for pending or development of the law in each contemplated legal proceedings. That country has been conditioned by the distinction is clearly brought out in the organization of the legal profession authorities to which the Commission in that country, for instance, in referred, the 16th Report of the Law England by the existence of the Reform Committee and the judgments in distinctive roles of barristers and the House of Lords in Waugh v British solicitors, and in France by the Railways Board — see in particular, in distinctions between "avocats the latter, per Lord Edmund Davies plaidants", "avocats consultants", [1980] AC at pp. 541-542. "avoués" and "notaires". Once again, such differences do not, in my opinion, go to the heart of the Waugh v British Railways Board was matter. about a document in the second category, namely a railway accident report which had been prepared for two distinct purposes, one of which was to Here we are concerned with documents found at the premises of the client which enable the Board's solicitor to advise it are claimed to be, or to reproduce, upon, and to conduct on its behalf, any communications passing between the litigation that might arise from the client and his lawyer for the purpose of accident. It was held that the repon was requesting or giving legal advice. The not privileged because, in the case of a question is whether such documents are document in the second category, the protected from disclosure to a public purpose of preparing for legal authority exercising a statutory power of proceedings must be the sole or search. dominant purpose. That requirement is however irrelevant in the case of documents in the first category, with which alone we are concerned in the As to that I must begin, I think, by present case. Waugh v British Railways saying a word about English law, partly Board is not therefore, in my opinion, in because of the widespread impression point in this case. that English law is, in this field, the most developed, and partly because, as I indicated earlier, the Commission has in From the 16th Report of the Law my opinion misinterpreted some of the Reform Committee the Commission authorities relating to that law. deduced two propositions, neither of which, im my opinion, it supports.

facts relevant to an issue upon which it is comes into existence at the time when adjudicating." the communication is made. The right to have that confidentiality protected arises at the same time and continues thereafter for evermore. The right may however be The point here is that the terms of overridden or modified by a statute. reference of the Committee did not rquire it to examine the law of privilege generally, but only to examine its operation in civil litigation. Hence the Some United Kingdom statutes Committee's definition of its scope in conferring powers of investigation that sentence. The Committee did not expressly preserve the right. Such is in thereby mean, and could not have particular the case of Section 85 of the meant, that "privilege" was no more Fair Trading Act 1973 and Sections 3 than part of the law of evidence in civil and 7 of the Competition Act 1980. proceedings. Thus, in the very field of competition law with which we are here concerned, the relevant United Kingdom statutes From the remainder of the first preserve the right as against the United paragraph of the report the Commission Kingdom authorities. deduced that the approach of English law to "privilege" was pragmatic and that the extent of the protection it gave Some United Kingdom statutes preserve in any case depended on the particular the right, but subject to modification. An circumstances of that case. In a general example of that i' to be found in sense that is true. But the point that the paragraph 5 of Sehet, ¡le 4 to the Finance Committee was making, so far as here Act 1975. relevant, was that in some cases the law gives a person an absolute right to claim privilege, whilst in others it accords the Lastly some United Kingdom statutes judge a discretion. As subsequent are, like Regulation No 17, silent on paragraphs of the report make clear (see the point. Counsel for the British in particular paragraphs 17 to 23), where Government hesitated to say that, in "legal professional privilege" applies, it such a case, the presumption was that the confers an absolute right; the judge has right was preserved. There is a surprising no discretion. Nor did the Committee dearth of United Kingdom judicial recommend any change in the law in authority directly on that question. The that respect. only case that comes anywhere near dealing with it seems to be Frank Truman Export Ltd v Metropolitan Police Thus, in my opinion, the English auth- Commissioner [1977] 1 QB 952, but it orities relied on by the Commission do does not really do so. We were however not support the propositions for which it referred on behalf of the applicant to the cited them. well established principle of English law that a statute is not to be interpreted as altering the common law to a greater As regards statutory powers of search, extent than its terms provide, either the starting point of English law, as we expressly or by necessary implication — were reminded by the CCBE and by see Maxwell on the Interpretation of the British Government, is that the Statutes, 12th Ed., pp. 116 et seq. We confidential character of a communi- were also referred on behalf of the cation between a lawyer and his client applicant to cases in Canada and in New

Zealand where that principle has been de la défense" and of "le secret des applied to statutes conferring powers of lettres". The latter, sometimes called "le investigation on public authorities secret des lettres missives" or "le secret without saying anything about the des lettres confidentielles", appears to be privilege of communications between particularly important. lawyer and client, and where, accordingly, it has been held that such A helpful summary of the resultant law is statutes did not override that privilege — to be found in a repon and an opinion see in particular Re Director of presented to the Belgian Conseil d'État Investigation and Reserarch and Shell by its Auditeur, C. Huberlant, in Canada Ltd (1975) 55 DLR (3d) 713, Delhauter v Caisse générale d'épargne et where the Federal Court of Appeal of de retraite, JT 1962, p. 171.

superior courts of Canada and of New Most of the Belgian and French auth- Zealand are of persuasive authority in orities concerning statutory powers of the English courts and I can, for my search are about the obligations of the part, see no good reason why an English juge d'instruction when carrying out a court should not follow those particular criminal investigation. It is clear that he decisions. must respect the confidentiality of communications between a lawyer and his client. The French "Code de I conclude that, if a provision like Article Procédure Pénale", by Articles 56, 76 14 of Regulation No 17 were to be and 96 expressly requires him to take found in an English statute, it would beforehand effective measures to ensure almost certainly be held not to override that the "secret professionnel" and the the confidentiality of communications "droits de la défense" shall be respected, between lawyer and client. wherever he may search.

French Government. The French Government drew our It seems clear from the authorities to attention, however, to an important which we have been referred that, in exception to the general rule. The those two countries, the law protecting French Ordonnance No 45-1484 of 30 the confidentiality of communications June 1945, which is described in its title between lawyer and client has developed as relating to "la constatation, la not only on the basis of the concept of poursuite et la répression des infractions the "secret professionnel" but on the à la législation économique", provides, basis also of the concepts of "les droits by Article 15 :

"Les agents visés à l'article 6 gation is silent as to such communi- (paragraphes 1 et 2) peuvent exiger la cations, it automatically overrides their communication, en quelque main qu'ils confidentiality. se trouvent, et procéder à la saisie des documents de toute nature (comptabilité, The laws of the other countries of the copies de lettres, carnets de chèques, Community were not discussed in traites, comptes en banque, etc.), propres anything like the same detail in the à faciliter l'accomplissement de leur argument before us.

It seems at all dans les administrations ou offices de events clear that, in no country other l'État, des départements, des communes than France, does legislation confer on et des colonies, les établissements publics the authorities responsible for the et assimilés, les établissements et administration of competition law organismes placés sous le contrôle de powers of investigation enabling them l'Etat, ainsi que les entreprises et services to disregard the confidentiality of concédés par l'État, les départements, les communications between lawyer and communes et les colonies." client.

There is refusing to disclose confidential no mention of it, as such, in the documents. European Convention on Human Rights, or, seemingly, in the constitution of any Member Sute; and your Lordships have That decision shows of course that in already seen that, in England and in France, as in England, an aptly worded France at least, it is acknowledged to be statutory provision can override the a right that can be overridden or confidentiality of communications be- modified by an appropriately worded tween a lawyer and his client. It also statute. The material placed before the shows how the Conseil d'État interpreted Court by the CCBE shows that that is so the particular statutory provision there in also in Belgium. In my opinion it is a

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the only procedure available under basing that decision to a material extent existing Community law", and that on the contents of that document. "until it is changed, it must be used".

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The applicant instanced that someone should, in general, be an attempt by the undertaking independent of the parties to the dispute, concerned, such as it had itself made in and be himself secure — which is the appendix to Mr Thomson's letter of another way of saying that the determi- 26 March 1979, to give a careful nation of such a dispute is essentially a description of the nature of the judicial function. documents; and an attempt, again such as it had itself made, to show

confidence". In the event of ultimate of the Commission imposing a fine or disagreement between the parties, it penalties upon it. would, the applicant submitted, be for this Court to inspect the documents and adjudicate on the dispute. The applicant conceded that that was an "improvised" procedure but submitted that improvisation was inevitable in the The applicant envisaged that, if the absence of legislation prescribing a Commission and the undertaking proper procedure. The blame lay with concerned in a particular case disagreed the Commission for not having exercised on the question whether each of them its power to propose such legislation. had taken such "reasonable steps", the Commission could proceed to take a decision imposing on the undertaking a

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But I can find the Community as laid down in the no provision in the present legislation on Treaty. First it would involve delegating the basis of which such a procedure a power of decision to a person, "the could be prescribed, and it would still be independent lawyer", not recognized by open to the objection that it necessitated the Treaty. Secondly it would involve disclosure of the contents of the requiring the Commission to adopt a document to persons within the decision in ignorance of the full facts on Commission. which the decision was based, leaving those facts to be ascertained by this

which the existing internal arrangements Member State there referred to must of the Commission were improved, so include its courts. Moreover resort to that, for instance, where an undertaking them appears all the more logical when claimed protection for a panicular one bears in mind that, by virtue of document and was unable to persuade Article 13 of the Regulation, an the Commission's inspector, on the spot, investigation ordered by the Commission of its protected nature, the document under Article 14, including one ordered

Counsel's third ground was at first sight more impressive. It was that resort to the Counsel for the Commission, at the national courts would cause delay. One hearing, questioned whether that answer to that is of course that the risk solution would be appropriate. He did of delay is no reason for denying a so, as I understood him, on three person justice. But in any case I think grounds. that the risk can be exaggerated. The paucity of reponed cases about disputes of the present kind shows that they are in fact rare. That is so even in England, where, so it seems from what we have learnt in the present case, the legal The first was that an appropriate profession is particularly alert to the procedure might not exist in all Member need to protect confidential documents, States. He himself, however, rather and where both the substantive and the destroyed that ground when he procedural law afford ample oppor- conceded, on the basis of paragraph 13 tunities for litigation about it. I think it of the judgment of this Court in Case probable that, in practice, provided that 826/79 the Mireco case (10 July 1980, the Commission's inspectors exercise not yet reponed), which had been cited common sense, such a dispute will arise by counsel for the applicant, that resort only where either the undertaking

OPINION OF SIR GORDON SLYNN — CASE 155/79

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