The case stems from dawn raids conducted on Belgacom’s premises in October 2010 as part of the authority’s investigation into alleged abuse of dominance in the high-speed internet industry. During the raid, the authority seized hundreds of electronic files, including files containing legal advice given by Belgacom’s in-house lawyers.
The authority recognised that all documents produced by independent lawyers were legally privileged, but refused to acknowledge that the same applies to internal advice given by Belgacom’s in-house lawyers.
In March 2011, Belgacom sued the authority, challenging its right to deny legal privilege to in-house correspondence. The Belgian Institute for Company Lawyers (IBJ) joined the case as an intervening party. The competition authority referred to the Akzo Nobel case of the Court of Justice of the EU (CJEU 14 September 2010, C-550/07 P), where the Court determined that in-house counsel were not entitled to privilege in EU cases. To benefit from legal privilege, a document must relate to legal advice being sought from “an independent lawyer […] one who is not bound to his client by a relationship of employment”. The competition authority argued that Belgacom’s in-house lawyers are employees and that therefore their advice is not legally privileged.
Belgacom argued that legal advice provided by in-house lawyers is confidential according to the Belgian statutory law of 1 March 2000 regarding the Institute for In-house Counsel and could not be seized in the course of inspections carried out by the authority or included in the case file.
The Court of Appeal of Brussels found that in-house counsel’s legal advice was entitled to privacy as set out in Article 8 of the European Convention of Human Rights and Article 7 of the EU Charter of Fundamental Rights and that the statutory law of 1 March 2000 confirms that companies are entitled to privacy in relation to legal advice of their in-house counsel.
In ruling in favour of Belgacom, the Court of Appeal rejected the application of the Akzo Nobel precedent of the European Court of Justice in purely Belgian situations. The Belgian competition authority can therefore not seize documents containing legal advice provided by in-house lawyers or use this information to demonstrate an infringement of competition law.
The ruling leaves the EU divided over the issue of in-house privilege. In countries such as the UK, Ireland, the Netherlands and Poland, in-house counsel enjoy legal privilege, while in Italy, Austria and France they do not.