Belgian court rules on legal privilege for in-house counsel in national competition case

In a judgment dated 4 March 2013 the Brussels Court of Appeal has held that, in the context of an investigation by the Belgian National Competition Authority on the basis of the Belgian Competition Act, the requests for advice and legal opinions, as well as preparatory and associated correspondence and documentation, of company in-house counsel are confidential and protected by the equivalent of legal privilege. The court held that the confidentiality rule applies only to the extent that the opinions or documents were addressed by the in-house counsel to the company that employed them and that the confidentiality or privilege was lost in the event that the document were addressed or disclosed to third parties. Furthermore, the confidentiality rule, which was derived from a provision in the Belgian law regulating the Belgian Institute of Company Lawyers, applies only to in-house lawyers who are members of the Belgian Institute and not to in-house lawyers who are not members of the Institute.

As a result of the confidentiality rule, the Court held that the seizure, in the course of an investigation by the Belgian Competition Authority against Belgacom, of a large number of e-mails was illegal and that the evidence thus obtained could not be used.

The ruling relies on Article 8 of the European Convention on Human Rights, which  protects the right to privacy and private correspondence, and the Court specifically rejected a plea that in-house lawyers were covered by the professional secrecy rule contained in the Belgian Penal Code that applies , inter alia, to admitted lawyers.

The ruling applies only to investigations carried out by the Belgian National Competition Authority on the basis of the Belgian Competition Act and it will not apply to investigations carried out by the European Commission on the basis of the EU competition law provisions. For the latter, the rules established by the CJUE in the Akzo case will continue to apply in Belgium.

It seems probable that the Belgian Competition Authority will appeal the judgment to the Belgian Supreme Court.

Charles Price