In its judgment of 5 March 2013 (Case 2011/MR/3) , the Brussels’ Court of Appeal ("CoA") has confirmed that advice given by in-house counsel to its employer as well as the related correspondence is protected by legal professional privilege ("LPP") and is thus confidential. In order to benefit from such protection, in-house counsel must be a member of the Belgian Institute for in-house counsel ("IBJ/IJE").
The case at hand started with a dawn raid by the Belgian Competition Authority on 12 and 13 October 2010 at the premises of Belgacom during which the competition authorities seized and copied several hard disks and mailboxes. From the start of the dawn raid, Belgacom opposed the use of French as language of the investigation, the very broad and unspecified scope of the investigation, as well as the seizing of numerous documents which were unrelated to the subject-matter of the investigation. After the dawn raid a number of decisions were taken by the Competition Prosecutor (Auditeur, "CP") and the independent Competition Prosecutor (Auditeur-tiers). Belgacom appealed three of these decisions (rejection of LPP for certain advice of in-house counsels, decision qualifying documents as ‘in-scope’ and decision of transmission of seized document to the investigation team).
The CoA first establishes that, in order to guarantee the right of effective judicial protection, it is competent to review the legality of the decisions taken by the CPs even though the Act on Protection of Economic Competition ("APEC") does not provide for this possibility.
Subsequently, the CoA confirms that in accordance with Article 5 of the Act on the IBJ/IJE, advice of in-house counsel is protected by the LPP and is thus confidential. The CoA holds that the Belgian legislators have explicitly expressed their will to protect the advice of an in-house counsel member of the IBJ/IJE, given to its employer, against disclosure. The fact that the Court of Justice of the European Union in its Akzo judgment did not extend LPP to advice of in-house counsel is without incidence on this choice as the Court of Justice only expresses itself on the situation at European level but does not exclude differing solutions at the level of the Member States. Thus the CoA confirms that advice of in-house counsel, as well as the correspondence concerning this advice, drafts of such advice, and the preparatory documents regarding this advice, are covered by LPP. However, these documents lose this protection once the employer has shared these documents to a person outside the company.
In its judgment of 15 March 2013 (LJN: BY6101) the Dutch Supreme Court applied a similar reasoning as to the legal privilege of an in-house counsel that is admitted to the Dutch bar association. In its judgment the Supreme Court points out that the Akzo judgment only relates to the European level and that this does not affect an in-house counsel's legal privilege under Dutch law.