The Court of Cassation has dismissed an appeal against a judgment in which the Court of Appeal held that legal advice provided by in-house counsel cannot be seized by the Belgian Competition Authority. As a result, it is now settled that legal advice prepared by in-house counsel is confidential and cannot be accessed and/or used against the employer of the author of the advice.
In a judgment dated 5 March 2013, the Brussels Court of Appeal held that legal advice provided by in-house counsel (members of the Belgian Institute for in-house counsel, "Instituut voor bedrijfsjuristen"/"Institut des juristes d'entreprise") is confidential. The judgment was delivered in the context of a dawn raid that was carried out by the Belgian Competition Authority at the premises of Belgacom. The Brussels Court confirmed that in-house counsel's advice could not be seized by the Belgian Competition Authority in the context of a competition investigation.
The Court of Appeal deviated from ECJ case law regarding dawn raids by the European Commission. In the Akzo judgment (case C-550/07 P), the European Court of Justice held that correspondence between a company and its in-house counsel cannot, with regard to the European Commission, benefit from legal professional privilege. Since this judgment, correspondence with in-house counsel can be requested and impounded by the European Commission in the context of a European competition investigation. The Court of Appeal ruled that the Akzo judgment does not apply in the context of investigations carried out by the Belgian Competition Authority, not even when the investigation is carried out on behalf of the European Commission.
The Belgian Competition Authority subsequently petitioned the Belgian Court of Cassation to reverse that ruling. By judgment dated 22 January 2015, the Supreme Court dismissed the petition (except on an issue not relevant to the issue of in-house counsel privilege).
As a result of this judgment, it is now settled that legal advice prepared by members of the Belgian Institute for in-house counsel cannot be accessed and/or used against the employer of the author of the advice. This prohibition applies to investigations by the Belgian Competition Authority, but not in the context of competition investigations conducted by the European Commission. As the Court of Appeal had clarified in its judgment, the term "advice" needs to be interpreted broadly. It covers not only final legal advice, but also preliminary internal correspondence preceding the final advice and draft legal advice.
The Court of Cassation's judgment, by confirming the judgment of the Court of Appeal, meets the need for in-house counsel to be able, particularly in competition cases, to provide confidential and objective legal advice to the company's management.