Luxembourg, 20/09/2007 (Agence Europe) - In a ruling issued on 17 September 2007, the European Court of First Instance clarified the rules protecting the confidentiality of certain documents. Although officials of the European Commission do not automatically have the right to read or even skim through documents to decide whether they are confidential, the Court of First Instance ruled that in Joined Cases T-125/03 and T253/03, the Commission had not violated the rights of British company Azko Nobel Chemicals Ltd and its subsidiarity Akcros Chemicals Ltd. The Court ruled that the arguments put forward by the companies at the time of surprise inspections in 2003 did not provide sufficient proof that the documents in question were confidential.
The case involves the reading of certain documents during surprise inspections carried out by order of the European Commission in February 2003 - documents claimed to be confidential by Akzo and Akcros. Following what the Court describes as a 'long' (and we can assume tough) discussion, it was decided that the head of the Commission's investigating team would briefly examine the documents in question to determine whether they were confidential. A dispute arose about five documents, which were separated by the Commission into two separate piles. The first group ('Set A') involved two copies of a memorandum on internal discussion in the company concerning a competition law compliance programme, one of which bore handwritten notes referring to contacts with a lawyer. The inspectors sealed the documents in an envelope while awaiting a decision about whether they were confidential. Other documents ('Series B') were not felt by the Commission representative to be confidential. They were copied and placed with the rest of the file without sealing them in an envelope. These included internal documents used for preparing the memorandum in Set A and two e-mails between the general manager and an company lawyer who specialised in competition law.
The Court of First Instance in principle backed a company's right to protect the confidentiality of its documents. If Commission officials are not convinced by the arguments put forward during a inspection, they may take away copies of documents in sealed envelopes while awaiting a decision about confidentiality, but they do not have the right to read the said documents before their status has been verified. The Court stressed that even a cursory glance could damage confidentiality. In the case in question, the arguments presented by Akzo and Akcros did not justify such an approach from the Commission. On the confidentiality of communications between lawyers and their clients, the Court holds that 'the protection only applies to the extent that the lawyer is independent, that is to say, not bound to his client by a relationship of employment, and expressly excluded communications with in-house lawyers.' The Court therefore rejected all Akzo and Akcros' arguments in Case T-253/03 that the documents in question were confidential and the Commission's inspectors had acted unlawfully. In Case T-125-03, Akzo and Akcros wanted a repeal of the 10 February 2003 decision for an inspection to be carried out. The Court rejected this request on the grounds that the decision did not have any legal effect (it would only be further action which might damage the company's rights) and therefore the companies' claim was inadmissible. The parties now have two months to bring an appeal, limited to points of law only. (cd)