Official Journal of the European Union

CE 78/562

(2004/C 78 E/0597)


by Richard Corbett (PSE) to the Commission

(24 November 2003)

Subject:   Legal privilege of documents between companies and their law firms

Does the Commission regard correspondence between companies and their law firms as ‘legally privileged’ in anti-cartel cases?

If so, what is to prevent companies arranging their cartels via their lawyers in order to avoid detection?

Answer given by Mr Monti on behalf of the Commission

(8 January 2004)

The Commission fully recognises that correspondence between companies and their law firms can be ‘legally privileged’. This recognition is in accordance with the jurisprudence of the European Court of Justice and the Court of First Instance. The jurisprudence sets out the conditions for such privilege. Thus, according to the case law, the confidentiality of written communications between lawyer and client is protected provided that, on the one hand, such communications are made for the purposes and in the interests of the client's rights of defence and on the other hand, they emanate from independent lawyers, that is to say, lawyers who are not bound to the client by a relationship of employment.

The second part of the question of the Honourable Member is of utmost concern to the Commission in connection with the effective enforcement of Article 81 of the EC Treaty. To that effect, the above case law imposes conditions so as to avoid abuse of legal privilege by companies. Documents are only protected if they are written communications solely for requesting the lawyer's advice for the purposes of the rights of defence.