## Facts

- The European Commission conducted a competition investigation under Regulation No. 17 and required AM & S Europe Limited to produce documents for inspection.
- AM & S produced some materials but withheld others, asserting they were confidential lawyer–client communications.
- The withheld documents related to legal advice concerning potential liability in future competition-law proceedings.
- The Commission issued a decision ordering AM & S to produce for inspection all documents for which privilege had been claimed.
- AM & S brought a direct action to annul the part of the Commission decision compelling production of the claimed privileged documents.

## Issues

1. Whether written lawyer–client communications can fall within “books and other business records” that the Commission may require under Regulation No. 17.
2. Whether the Commission or the undertaking primarily decides whether requested documents must be produced during an investigation.
3. Whether, and on what conditions, Community law protects legal professional privilege against Commission demands for disclosure.

## Decision

- The court held that written lawyer–client communications may constitute “business records” when they concern the undertaking’s market activities, and thus may be requested in principle.
- The court held that it is generally for the Commission, not the undertaking, to decide whether disclosure is “necessary,” subject to judicial review.
- The court recognized legal professional privilege as a general principle of Community law but limited it to written communications that satisfy two cumulative conditions:
  - made for the purposes and in the interests of the client’s rights of defense; and
  - exchanged with an independent lawyer not bound to the client by an employment relationship (i.e., an external lawyer admitted in a Member State).
- The Commission was required to respect privilege within those limits while retaining authority to assess whether the conditions were met.

## Legal Principles

- Lawyer–client communications are not categorically excluded from investigatory production requests; they may be “business records” if they relate to market activities relevant to competition enforcement.
- Legal professional privilege exists under Community law as a general principle derived from common Member State traditions, but it is narrowly defined.
- Privilege applies only to written communications connected to the client’s rights of defense and involving an independent external lawyer; communications with in-house counsel are excluded on independence grounds.
- The Commission may demand sufficient information to evaluate a privilege claim and may decide whether production is required, with its decision reviewable by the court.

## Conclusion

The court reconciled competition investigatory powers with confidentiality by recognizing a limited legal professional privilege: only defense-related written communications with independent external counsel are protected, while the Commission retains broad authority to require production of market-activity records and to assess privilege claims subject to judicial control.


AM & S Eur. Ltd. v. Comm’n of the Eur. Cmtys., Case 155/79, [1982] E.C.R. 1575 (May 18, 1982)