Advocate General Léger (Wouters, 2001) indicated that the secrecy was an “essential guarantee of the freedom of the individual and the good functioning of justice, so that is part of public order in most of the Member States”. Much earlier case law (AM & M, 1982) elevated him to the rank of general principle of law as a fundamental right.
The question that arises is: how is it possible that confidentiality is recognized as a fundamental principle and, while being denied the lawyers company?
The truth is that Akzo, which is limited exclusively to the European Commission inspections may be conducted according to the Rules of Competition merely ratify the jurisprudence established in AM & M already mentioned. More than thirty years ago the Court established certain requirements to confidentiality and set two clear requirements:
Concerning the rights of defense: the correspondence is limited to the framework of the rights and interest of customer advocacy
Independence of lawyers: it can not be bound to the client by an employment relationship
The ECJ considers that the corporate lawyer is subject to a dependent relationship in the organic, hierarchical and functional, that is flat, there is a “personal identification” with the company. No matter that the national legislation to protect the independence of lawyers of company because, in the opinion of the Court of Luxembourg, “the paper is patient” (sic), but the truth is that there is also an added dependency, economic, that is complete (AKZO aps. 60-66). In short, before a Commission inspection How can we know with certainty that the corporate lawyer working as an employee or as a lawyer?
The Code of Ethics of the Spanish Advocacy states in Article 2.4 that “the independence of attorney allows you to refuse the instructions, contrary to their own professional criteria, seeking to impose his client, office mates, the other professionals that collaborate or any other person, entity or body of opinion, advice or ceasing to defend the case in question if it considers that it can not act independently. ” Doing an exercise of analogy, the ECJ considers that the attorney firm is unable to meet this requirement.
non-recognition of the confidentiality of company lawyers is not new, since the Court did no more than ratify the law dating from 1982;
moreover, it applies only to those investigations initiated by the European Commission, while each State will continue to apply, within its internal procedures, their own criteria, as it has recently done the Belgian Supreme Court.
What cries the situation is a lobby in Brussels to introduce a Europe-wide legal reform to unify this criterion. The difficult, in view of the diversity of legal traditions on the continent, it is that this unity of purpose can be achieved.