The Brussels Court of Appeal has held that advices by in-house legal counsel are covered by legal professional privilege in the context of investigations under the Competition Act.
Belgacom, the largest telecommunications operator in Belguim, appealed against the Competition Authority’s seizure of electronic documents and emails to and from its in-house counsel during a dawn raid in 2010. The Court held that the Competition Authority does not have the right to seize documents containing legal advice from in-house counsel during such raids.
This decision is contrary to a relatively recent decision by the Court of Justice of the European Union which held that internal communications with in-house lawyers do not attract legal professional privilege. The commission took the view that the documents were not exempt, a decision Europe’s Court of First Instance upheld in 2007. (Akzo Nobel Chemicals and Akcros Chemicals v Commission and Others Case C 550/07 P.)
What this means is that under Belgian law, in-house legal advice is privileged, with this protection extending to not only final advices but also communications between the company and its in-house counsel regarding such advice. However, in cases where the European Commission is carrying out inspections and raids, the principles of the AkzoNobel decision will still apply and legal advice will not be protected.
The Belgian Competition Authority has indicated it may appeal the Belgacom decision to the Belgian Supreme Court.