The Court of First Instance (CFI) has dismissed two actions brought by Akzo Nobel and Akcros claiming that certain documents seized by the European Commission (EC) during a surprise inspection (so-called “dawn raid”) at their premises were protected by the attorney-client privilege. The documents for which privilege was asserted included e-mails exchanged between companies’ executives and their internal lawyers, and documents prepared by executives to seek the advice of the companies’ external lawyers in connection with a competition law compliance program.
The CFI rejected the applicants’ argument, which was supported by several legal organizations, that the communications between company executives and in-house lawyers are protected by legal privilege. The CFI reasoned that such protection only applies to the extent that lawyers are independent and not bound to their clients by an employment relationship. In addition, the CFI held that the fact that a document has been put together under a competition law compliance program is not a sufficient condition to confer legal privilege. The CFI also found that internal company documents drawn up to seek legal advice from an outside lawyer in the exercise of the rights of defense are legally privileged. The CFI further held that the EC infringed the companies’ rights during the dawn raids when it forced the companies to allow cursory inspection of documents that its representatives claimed were protected from disclosure by a legal privilege. The EC may not, according to the CFI, read such documents before affording the companies the opportunity to contest their inspection before the CFI.