On 5 March 2013, the Court of Appeal of Brussels ruled that in-house lawyers have the right to legal privilege vis-à-vis the competition authorities.
The case stems from dawn raids conducted on Belgacom’s premises in October 2010 as part of the authority’s investigation of alleged abuse of dominance in the high-speed internet industry. During the raid the authority seized hundreds of electronic files including legal advice by Belgacom’s in-house lawyers.
The authority recognised that all documents coming from independent lawyers were legally privileged, but refused to acknowledge that the same goes for 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 counsels 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 rendered by in-house lawyers is confidential according to Belgian statutory law of 1 March 2000 regarding the Institute for in-house counsels 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 through 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 of the legal advices of their in-house counsels.
In ruling in favour of Belgacom, the appeal court rejected the application of the Akzo Nobel precedent of the European Court of Justice on purely Belgian situations. The Belgian competition authority can therefore not seize documents containing legal advice rendered by in-house lawyers or use this information to demonstrate an infringement of competition law.
The ruling leaves the EU divided over the in-house privilege. In countries including the UK, Ireland, the Netherlands and Poland, in-house counsel enjoy legal privilege, while in Italy, Austria and France they do not.