Precedent Setting Judgment Granting Legal Privilege to In-house Counsel in National Antitrust Proceedings

March 5, 2013

Cleary Gottlieb successfully represented pro bono the Belgian Institute for Company Lawyers - Instituut voor Bedrijfsjuristen/Institut des Juristes d'Entreprise (IBJ/IJE) - as an intervener in court proceedings brought by Belgacom SA/NV against the Belgian Competition Authority (BCA), which resulted in the Brussels Court of Appeal granting a protection equivalent to legal privilege to in-house lawyers' legal advice in national antitrust proceedings.

In October 2010, the BCA inspected the premises of Belgacom and seized hundreds of electronic files including legal advice rendered by Belgacom's in-house lawyers who were members of the IBJ/IJE. Following the decision to deny privilege to its in-house lawyers' legal advice and related correspondence, Belgacom sued the BCA before the Brussels Court of Appeal in March 2011. The IBJ/IJE subsequently intervened in support of Belgacom's argument to the effect that legal advice rendered by its in-house lawyers and related correspondence were confidential according to Belgian statutory law and could not therefore be seized in the course of inspections carried out by the BCA, let alone versed into the case file.

In a judgment on March 5, 2013, the Brussels Court of Appeal recognized that, under Belgian law, legal advice rendered by in-house lawyers and related correspondence are confidential and cannot be seized by the BCA. The Court emphasized that the opposite solution would contravene the essence of the task of general interest carried out by company lawyers to the benefit of their employer.

This judgment has important implications at Belgian level but also, potentially, at European level, in so far as: (i) it expressly rejects the applicability (and contagion) of the "Akzo" ruling of the EU Court of Justice (C-97/08P) in (to) national antitrust proceedings; and (ii) it roots the confidentiality of in-house counsel's legal advice in the right to privacy protected by Article 8 of the European Convention of Human Rights and Article 7 of the EU Charter of Fundamental Rights.