In its recent judgment in Akzo, the Court of Jus-tice of the European Union (hereinafter referred toas «the Court») clarified that correspondence within-house lawyers is not covered by legal profes-sional privilege and that the scope of that prin cipleis restricted to «independent lawyers». It appliedthe two cumulative conditions established in AM& S Europe/Commission («AM & S»),1 namely that,first, the exchange with the lawyer must be con-nected to «the client’s rights of defence» and, sec-ond, that the lawyers are «independent».

(1) Facts and ProcedureOn 10th February 2003 the Commission adopted adecision ordering, inter alia, Akzo and Akcros tosubmit to an investigation aimed at seeking evi-dence of possible anti-competitive practices. Twodays later Commission officials, assisted by repre-sentatives of the Office of Fair Trading (OFT), car-ried out an inspection at the premises ofAkzo Nobel Chemicals Ltd (Akzo) and AkcrosChemicals Ltd (Akcros) in the United Kingdom. Inthe course of these operations the undertakings’representatives informed the Commission officialsthat a number of documents were likely to becovered by legal professional privilege. Theleader of the investigating team examined thedocu ments in question and took the view that theywere definitely not privileged. Consequently, shetook copies of them. On February 17th the appli-cants sent the Commission a letter explaining whythe documents concerned were covered by legalprofessional privilege. The Commission answeredin a letter that the reasons set out by the applicantswere insufficient to show that they were coveredand adopted on May 8th a final decision rejectingthe applicants claim for the return of the docu-ments.

Akzo and Akcros brought actions before theGeneral Court on April 11th and July 4th 2003,seeking annulment of the decision ordering thesubmission to the investigation of 10th of February,an order requiring the Commission to returncertain documents and the annulment of the re-jection decision of 8th of May. In its judgment of

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17th of September 2007, the General Court dis-missed the action for annulment of the decisionof 10th of February as inadmissible and the actionfor annulment of the rejection decision of May 8th

as unfounded.2 In substance, in its judgment theGeneral Court defined the Commission’s investi-gatory powers in the course of inspections whenthe principle of legal professional privilege couldbe at stake. It determined the administrative pro-cedure that the Commission has to follow whendealing with documents potentially covered bythat principle. It also clarified that corres-pondence with in-house lawyers is notcovered by legal professional privilege within thecontext of Regulation 1/2003.3

The appeal to the Court concerned exclusivelythe application of legal privilege to two e-mails.4

They were exchanged between the Director-General of Akcros and Mr S., a lawyer registeredas a member of the Netherlands Bar, who wasemployed in the legal department of Akzo. Theappeal was solely directed against the latter partof the General Court’s judgment. In their appeal,Akzo and Akcros claimed that the General Courtwas wrong to reject their claim regarding therespect of legal professional privilege with regardto internal correspondence via email with their in-house lawyer.

(2) JudgmentThe applicants relied, in substance, on three pleasto challenge the latter part of the judgment ofthe General Court: first, the misinterpretation ofthe second condition for falling under legalprofessional privilege as laid down by AM & S, the criterion of «independence» and a breach ofthe principle of equal treatment. Second, theevolution of national legal systems and EuropeanUnion law since the judgment in AM & S wasrendered as well as a breach of the rights of de-fence and legal certainty. The third plea was basedon an alleged infringement of the principles ofnational procedural autonomy and conferredpowers.

I. Natalie Harsdorf Enderndorf, Vienna/Luxembourg*, and Simon Martin, Paris/Luxembourg**

Communication between In-house Lawyers and Their ClientsDoes Not Fall under Legal Professional Privilege within theContext of Regulation 1/2003(Akzo Nobel Chemicals and Akcros Chemicals � Commission andOthers, CJEU (Grand Chamber),Judgment of 14 September 2010, C-550/07)

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lawyers from the scope of that principle and thata considerable number does not even allow in-house lawyers to be admitted to a Bar or LawSociety.9 Therefore the Court held that contraryto the applicant’s allegations, no predominanttrend could be established towards in-cluding in-house lawyers when applying theprinciple of legal privilege. Concerning thedevelopment of European Union law particularemphasis had been put by the applicants on theamendments to the rules of procedure that hadoccurred since the judgment in AM & S, inparticular through Regulation 1/2003. TheCourt held that these amendments had actuallydefined the Commission powers broadly and had,in order to protect competition effectively andsafeguard the effectiveness of inspection, rein-forced the Commission’s powers and do notaim at giving in-house lawyers the same status asexternal ones.10

The second part of the second plea concerned therights of defence and an infringement of theprinciple of legal certainty. The Court recalled thenature of the rights of defence as a fundamentalprinciple of European Union law established bycase-law and recently enshrined in Article 48 (2) ofthe Charter of Fundamental Rights of the Euro-pean Union.11 It then went on to establish that therights of defence do not alter the fact that an in-dividual who seeks advice from a lawyer mustaccept the restrictions and conditions applicable tothe exercise of that profession, part of which is theapplication or non-application of legal privilege.12

Consequently, the Court did not find a breach ofthe rights of defence. As to the alleged breach ofthe principle of legal certainty, it stated thatthe distinction between investigationsbrought by the Commission under Regulation1/2003 and those carried out at national levelreflects the division of power between variouscompetition authorities.13 The extent to which legalprivilege is granted is directly linked to the divisionof power between authorities as the relevant rulesmay vary according to which authority is incharge.14 The undertakings under investigation areable to determine their position in the light of thepowers of the authority concerned and the law ap-plicable, specifically of those powers concerningthe seizure of documents.15 Therefore it dismissedthis ground of appeal.

Further, Akzo and Akcros claimed in the alter-native, as the third ground of appeal that theGeneral Court had in its findings failed to respectthe principle of national procedural au-tonomy and the principle of conferred powers.

The first ground of appeal was, in its firstpart, based on a teleological interpretation of thesecond criterion for being covered by profession-al legal privilege, namely «independence». Theapplicants claimed that an in-house lawyer whois a member of a Bar or Law Society was, becauseof the professional conduct obligationshe was obliged to follow, just as much «inde -pendent» as an external lawyer.5 They highlightedthe specific parts of the legislation in the Nether-lands and Mr. S’ contract to show how similar hisposition was compared to that of an externallawyer. The Court quoted Advocate General (AG)Kokott, stating that the independence of lawyersis not only determined positively, by way ofreference to professional ethical obligations, but also negatively, by the absence of an em -ployment relationship.6 Whatever guaranteesthe professional regime provides for under Dutchlaw, they cannot, according to the Court, ensurea degree of independence comparable to that ofan external lawyer because the fact remains thathe occupies the position of an employee whichaffects his ability to exercise professional inde -pendence.7 It further stated, and thereby con-firmed the General Court’s interpretation, that itfollows from both the in-house lawyer’s eco nomicdependence and close ties with his employer thathe does not enjoy a level of professional independ-ence comparable to that of an external lawyer.8

As regards the second line of argument of the firstplea, the Court held that in-house lawyers are in afundamentally different position from ex-ternal lawyers because of the economic de-pendence and the personal identification whichfollows from an employment relationship. The factthat an in-house lawyer is admitted to a Bar or LawSociety does not have an impact on the assess-ment of his independence as the admission onlyrepresents a formal act with the effect of thelawyer being bound by professional legal obliga-tions. Consequently the Court held that the prin-ciple of equal treatment had not been breached asthe situation of an in-house lawyer was differentfrom that of an external lawyer.

The second plea, raised in the alternative, wasbased in its first part on an evolution of thenational legal systems as well as of the law ofthe European Union. Regarding the evolution ofnational legal systems the Court recognised thatlegal professional privilege including in-houselawyers was relatively more common than at thetime when AM & S was rendered. However, it alsoacknowledged that a large number of MemberStates still exclude correspondence with in-house

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The Court recalled that it follows from the prin-ciple of national procedural autonomy that in theabsence of European Union rules governing thematter, it is for the domestic legal system of eachMember State to designate the courts having ju-risdiction and laying down the procedural rules.16

It went on to say that the present case concerneda scenario where a European Union institution hadtaken a decision based on a European Unionregulation and that at European Union level auniform application and interpretation of theprinciple of legal privilege is necessary for ensuring the unity of European Union law.17 There-fore, national procedural autonomy could not beinvoked against the powers of the Commission.

The second principle raised by the applicants wasthe principle of conferred powers. TheCourt held that when national authorities assistthe Commission in investigations, the question ofwhich documents could be examined or whichcould have copies taken during inspections is de-termined exclusively in accordance with EuropeanUnion law.18 First, the rules of procedure with re-spect to competition law are necessary for thefunctioning of the internal market, the latter con-stituting an exclusive competence of the EuropeanUnion. Second, the provisions in Article 101 of theTreaty on the Functioning of the European Union(«TFEU») and the powers conferred therein allowthe Commission observance of the prohibitions re-ferred to in those Articles.19 Consequently the thirdand last ground of appeal was also dismissed in itsentirety.

(3) CommentAre documents exchanged between undertakingsand their in-house lawyer protected by legal pro-fessional privilege in a situation where the Euro-pean Commission exercises its investigatorypowers pursuant to Regulation 1/2003? That wasthe question the Court was confronted with in theproceedings at hand.

(a) Confirmation of Previous Case LawLegal professional privilege has been defined bythe Court as the protection of written com-munications between lawyer and client.20

In AM & S, the Court established two conditionsfor its application: first that they are exchanged inthe interest of the client’s rights of defence andsecond that they emanate from independentlawyers.21 In Akzo, the Court has reiterated thosetwo conditions and thereby confirmed the AM & S judgment in this regard.22 The meaning of thesecond condition, «independence», was contro-versial and at the very heart of the dispute before

the Court. The applicants claimed that in-houselawyers should be considered to be just as inde-pendent as external lawyers. However, as statedabove, the Court ruled that the criterion of inde-pendence has to be interpreted as not includingin-house lawyers for the purposes of applying legalprofessional privilege.

The Court has confirmed AM & S and held thatlegal professional privilege forms part of the rightsof defence. It recalled the case-law according to which in all proceedings where sanctions maybe imposed the rights of defence have to be re-spected because they represent a fundamentalprinciple of European Union law and which is nowalso enshrined in Article 48(2) of the Charter ofFundamental Rights. However, it rejected theapplicants‘ claim that the rights of defence mustinclude the protection of communication with anin-house lawyer, and therefore recognised thatlegal professional privilege forms part of the rightsof defence but is limited to communication withan external lawyer.23 One may also note paragraph47 of the Opinion of AG Kokott where she ex-plains that the existence of the fundamental rightof legal professional privilege derives from the factthat it is common to the legal systems of theMember States, protected by the European Court of Human Rights and guaranteed by the Charter of Fundamental Rights of the EuropeanUnion.24

In AM & S the Court had directly referred to theMember States’ legal systems holding that«[…]there are to be found in the national laws ofthe Member States common criteria inasmuch asthose laws protect, in similar circumstances, theconfidentiality of written communications be-tween lawyer and client provided that, on the onehand, such communications are made for the pur-poses and in the interests of the client’s rights ofdefence and, on the other hand, they emanatefrom independent lawyers who are not bound tothe client by a relationship of employment».25 TheCourt deduced that «viewed in that contextregulation No 17 must be interpreted as pro-tecting, in its turn the confidentiality of writtencommunications between lawyer and clientsubject to those two conditions, and thus incor -porating such elements of that protection as are common to the laws of the MemberStates».26 When the Court reviewed the AM & Scriteria under the alleged evolution of nationallegal systems claimed by the applicants, it referredto a comparative analysis conducted by theGeneral Court showing that «a large number ofMember States still exclude correspondence with

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in-house lawyers from protection under legalprofessional privilege».27 Thus, the Akzo casereveals how legal traditions differ in the variousMember States and while inspiring the Court’sreasoning they also force it to develop its ownstandard of fundamental rights adequate for theaims and structure of the European Union.28 TheCourt follows neither a maximalist, following e.g.the United Kingdom system, nor a minimalistapproach, as e.g. provided for in the Austrian leg-islation, but establishes an autonomous Unionconcept of the fundamental right oflegal professional privilege.29

The limitation of the application of legal pro -fessional privilege drawn by the Court is not onlycoherent with the AM & S judgment but alsocorresponds to the fact that legal professionalprivilege represents a limitation to the Com-mission’s broad investigatory powers.30 The Courthas held that «[…] the detection of infringementsof the competition rules is becoming ever moredifficult, and, in order to protect competition ef-fectively and safeguard the effectiveness ofinspections, the Commission should be em-powered to enter any premises where businessrecords may be kept, including private homes»31

and «thus, Regulation No 1/2003, contrary to theappellant’s assertions, does not aim to require in-house and external lawyers to be treated in thesame way as far as concerns legal professionalprivilege, but aims to reinforce the extent of theCommission’s power of inspection, in particular asregards documents which may be the subject ofsuch measures».32 From a practical point of view itwould also seem very difficult to distinguish be-tween legal advice and business advice within thecommunications of in-house lawyers as they mayvery well exercise different functions within theircompany.33 In light of those considerations, theeffective protection of competition law seems tojustify a limitation of the fundamental right of legalprofessional privilege.

(b) Implications of the Judgment When examining the implication of the Akzo judg-ment it is crucial first to determine the scope of theruling. In the proceedings at issue the Court hasruled on «the legality of a decision taken by an in-stitution of the European Union on the basis of aregulation adopted at European Union level».34

Therefore the scope of legal professional privilegeseems to have been defined on a purely Euro-pean level. Legal professional privilege withinthe application of Regulation 1/2003 covers thecommunication between an external lawyer andhis client when exchanged in the interests of the

client’s rights of defence. The judgment is crystalclear on that point.

It remains to be examined how the Akzo judgmentneeds to be applied in other constellations andparticularly in a national environment.

The first variation one can think of is a situationwhere the Commission acts under Article 20 ofRegulation 1/2003 and is, contrary to the facts ofthe Akzo judgment, not assisted by a nationalcompetition authority. In this case it seems that theAkzo judgment applies because, as in Akzo, it is asituation where an institution of the EuropeanUnion takes a decision on the basis of a regulationadopted at European Union level. The same rea-soning applies to a scenario where officials from anational authority assist the Commission pursuantto Article 20(5) of Regulation 1/2003 notwith-standing the fact that Member State officials mayat some point «take over» the inspection e.g. toovercome opposition.

Other variations of the facts at issue evoke theproblem of how national competition authoritiesshould apply the Akzo judgment when theyproceed to an investigation under nationalprocedural law. That would concern, first, asituation where the national authority is request-ed to act under Article 22(2) of Regulation 1/2003on behalf of the Commission. Second, where anational competition authority carries out an in-vestigation on behalf and for the account of an-other authority under Article 22(1) of Regulation1/2003. The third scenario would be where a na-tional authority conducts an investigation on itsown behalf applying European Union competitionrules, namely Articles 101 and 102 TFEU.

Legal professional privilege is granted toa varying extent in the Member States ofthe European Union. In Austria for example it isguaranteed within a very limited scope.35 The Akzojudgment guarantees the confidentiality of com-munications between external lawyers and theirclients when the conditions laid down in AM & Sare fulfilled. Legal professional privilege is clearlybetter protected under European Union law thanunder Austrian law. Does that mean that theAustrian competition authority, when conductingan investigation on its own behalf andapplying national procedural law, can make copiesof documents that would be protected if it assisted the European Commission in an investi -gation or if the Commission itself conducted thatinvestigation?

The Court has not directly answered this question.However, one may note paragraph 115 of the

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judgment. The Court states that «the uniform in-terpretation and application of the principle oflegal professional privilege at European Union levelare essential in order that inspections by the Com-mission in antitrust proceedings may be carried outunder conditions in which undertakings concernedare treated equally. If that were not the case, theuse of rules or legal concepts in national law andderiving from the legislation of Member Statewould adversely affect the unity of EuropeanUnion law. Such an interpretation and applicationof that legal system cannot depend on the placeof the inspection or any specific features of thenational rules». The reasoning of the Court seemsrather opposed to an interpretation which wouldallow Member States to adopt a differentapproach concerning legal professional privilege.

In this context, the Wachauf case-law also needsto be kept in mind, where the Court stated that«Member States are bound, when implementingCommunity law, by all the same general principlesand fundamental principles which bind the Com-munity in its actions».36 An application of Wachaufwould therefore require a minimum standardof protection of legal professional privilegethroughout the European Union when Articles101 and 102 TFEU are applied.37 Concerningthe Wachauf doctrine, two caveats have to beconsidered: first, a fundamental right must be atstake, and second, the national legal frameworkmust be considered incompatible with the require-ments of that fundamental right.38

However, national procedural autonomy asexplicitly recognised in Article 22(2) of regulation1/2003 stands against the above considerations.With regard to this point, AG Kokott seems tosupport a division of competences that affects alsohow legal professional privilege is applied. In herOpinion in the Akzo case she stated that «it istrue that officials from the national competitionauthority may assist the Commission in an investi-gation which it is conducting (Article 14(5) and (6)of Regulation No 17 or Article 20(5) and (6) ofRegulation No 1/2003), just as, conversely, Com-mission officials may take part in investigationsconducted by the national competition authoritiesby lending support to the latter (Article 13(2) ofRegulation No 17 or the second subparagraph ofArticle 22(2) of Regulation No 1/2003). However,this does nothing to change the division of com-petences relating to the ordering and conduct ofinvestigations or the legal provisions applicable, in-cluding the rules on legal professional privilege».39

The Court also seems to accept that «the Com -mission’s powers under […] Regulation No 1/2003

may be distinguished from those in enquirieswhich may be carried out at national level. Bothtypes of procedure are based on a division ofpowers between the various competition author-ities. The rules on legal professional privilege may,therefore, vary according to that division of pow-ers and the rules relevant to it».40 However, thelatter was stated by the Court with regards to thesubmission of the applicants concerning the prin-ciple of legal certainty where Article 101 TFEU isapplied in parallel with corresponding nationalprovisions and not concerning national investi -gations based on Articles 101 and 102 TFEU.

How will the judgment affect countries whichguarantee legal professional privilegefor in-house and external lawyers alike,such as the Netherlands and the United Kingdom?The problem in this scenario differs from the onein Austria, as the standard of protection of thefundamental right of legal professional privilege isactually higher in these countries than on Euro-pean Union level. It is unclear how the Akzoruling needs to be applied in such a case if thenational competition authority in a national pro-cedure takes copies of communications betweenan in-house lawyer and his client. The nationalcompetition authority could argue that the Akzojudgment applies, excluding in-house lawyers fromthe protection of legal professional privilege. Theundertakings could argue that by virtue of theprinciple of national procedural autonomy, the na-tional competition authority must respect legalprofessional privilege. The Court has held that inthe absence of Community rules governing thematter, it is for the domestic legal system of eachMember State to designate the courts and tri-bunals having jurisdiction and to lay down thedetailed procedural rules governing actions forsafeguarding rights which individuals derivedirectly from Community law, provided that suchrules are not less favourable than those governingsimilar domestic actions (principle of equivalence)and that they do not render practically impossibleor excessively difficult the exercise of rightsconferred by European law (principle of effec-tiveness).41 Thus, it would need to be examinedwhether the national procedural rules in, forexample, the United Kingdom or the Netherlandswould render excessively difficult an effect -ive application of Articles 101 and 102TFEU. Then they could possibly be held contraryto the principles cited above. However, it is diffi-cult to imagine in what way they could, in reality,present an insurmountable obstacle to the imple-mentation of the European competition rules.42

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Also note in this context the Deutsche Milch-kontor judgment in which the Court held that «inso far as community law, including its generalprinciples, does not include common rules to thiseffect, the national authorities when imple-menting community regulations act in accordancewith the procedural and substantive rules of theirown national law […]».43 Nehl has concluded fromthis judgment that national authorities have tofollow the general principles when implementingUnion law possibly including procedural funda-mental rights such as the right to a fair hearing asthey have been defined in a sufficiently clear,precise and complete way on Union level to beapplied directly.44 Such an interpretation of theDeutsche Milchkontor case-law could lead to anapplication of general procedural principles whennational authorities in the United Kingdom orNetherlands apply European Union law and couldhence lead to a binding effect of Akzo in a national environment.

(c) ConclusionIn the Akzo judgment, the Court has clarified thatthe European Union law concept of legal pro-fessional privilege does not include in-houselawyers and has thereby carefully balanced theefficiency of competition law enforce-ment and the protection of the rights ofdefence. To put it in the words of Weiler «whatis fundamental in fundamental rights is thebalance struck between individual and public in-terests».45 The European Commission’s powers ofinvestigation have been strengthened by this judg-ment, as communications between an under -taking and its in-house lawyer can be used infuture as evidence by the Commission in infringe-ment proceedings. It remains to be seen whetherand how Akzo might apply in a national context.

* Mag. iur. Natalie Harsdorf Enderndorf LL.M. (Bruges). Casehandler at the Federal Competition Authority, Austria.Currently dispatched to the General Court, Luxembourg. Allopinions expressed are personal to the author and do notcommit the General Court or the Austrian Federal Com-petition Authority.

** Simon Martin; DU Criminology (University of Nancy 2, 2005),Master 2 in Private Law (University of Nancy 2, 2008), Master 2 in European Law (University of Paris Ouest-Nan-terre-La Défense, 2010), French Bar Exam: CAPA (2010),currently doing an internship at the Court of Justice of theEuropean Union. All opinions expressed are personal to theauthor and do not commit the Court of Justice.

1 CFEU of 18 May 1982, 155/79 AM & S Europe � Com -mission.

2 GC of 17 September 2007, T-125/03 and T-253/03 AkzoChemicals Ltd, Akcros Ltd and Others � Commission.

3 Council Regulation (EC) No 1/2003 of 16 December 2002on the implementation of the rules on competition laid down

in Articles 81 and 82 of the Treaty, Official Journal L 1,04.01.2003, p. 1-25.

4 Judgment, para. 28.5 Judgment, paras. 32-34.6 Judgment, para. 45.7 Judgment, paras. 46-47.8 Judgment, para. 49.9 Judgment, paras. 71 and 72.10 Judgment, paras. 85 and 86.11 Judgment, para. 92.12 Judgment, para. 96.13 Judgment, para. 102.14 Judgment, para. 102.15 Judgment, para. 104.16 Judgment, para. 113.17 Judgment, paras. 114 and 115.18 Judgment, para. 119.19 Judgment, paras. 116-118.20 CFEU of 18 May 1982, 155/79 AM & S Europe � Com -

mission, para. 21.21 CFEU of 18 May 1982, 155/79 AM & S Europe � Com -

mission, para. 21.22 Judgment, paras. 40, 41 and 50. 23 Judgment, paras. 92 to 96.24 Opinion of Advocate General Kokott of 29 April 2010,

C-550/07 P Akzo Nobel Chemicals Ltd and Akcros Chemi-cals Ltd � Commission.

25 CFEU of 18 May 1982, 155/79 AM & S Europe � Com -mission, para. 21.

26 CFEU of 18 May 1982, 155/79 AM & S Europe � Com -mission, para. 22.

27 Judgment, para. 72.28 See on the dilemma of the standard of protection and the

need for the European Union to adopt an autonomousstandard of fundamental rights: Nehl, Europäisches Ver-waltungsverfahren und Gemeinschaftsverfassung: EineStudie gemeinschaftsrechtlicher Verfahrensgrundsätze unterbesonderer Berücksichtigung «mehrstufiger» Verwal-tungsverfahren, 2002, p. 146. See also in this context Wei -ler/Lockhart, «Taking rights seriously» seriously : The Euro-pean Court and its fundamental rights jurisprudence, CMLR[1995] 51-94 and «Taking rights seriously» seriously: the Eu-ropean Court and its fundamental rights jurisprudence-partII, CMLR [1995] 579-627.

29 See on the methodology used by the Court of Justice: Wei -ler, The jurisprudence of human rights in the EuropeanUnion: integration and disintegration, values and processes,Harvard Jean Monnet working paper series; no 2/96.

30 See also in this regard, GC of 17 September 2007, T-125/03and T-253/03 Akzo Chemicals Ltd, Akcros Ltd and Others �Commission, paras. 172 and 176.

31 Judgment, para. 85.32 Judgment, para. 86.33 Dekeyser/Gauer, The new enforcement system for articles

81 and 82 and the rights of defence, in: Hawk (ed.), Inter-national Antitrust Law and Policy 2004, Annual Proceedingsof the Fordham Corporate Law Institute, 2005, p. 570.

34 Judgment, para. 114.35 Thyri, Kartellrechtsvollzug in Österreich, 2007, p. 168-170.36 CFEU of 13 July 1989, 5/88 Hubert Wachauf � Bundesamt

für Ernährung und Forstwirtschaft, para. 19; see alsoCraig/de Búrca, EU Law Text, Cases and Materials, 4th edi-tion (2008), p. 396.

37 Gippini Fournier, Legal professional privilege in competitionproceedings before the European Commission: beyond thecursory glance, in: Hawk (ed.), International Antitrust Lawand Policy 2004, Annual Proceedings of the FordhamCorporate Law Institute, 2005, p. 653. See also Schubert,

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Legal privilege und Nemo tenetur im reformierten euro -päischen Kartellverfahren der VO 1/2003, Beiträge zumEuropäischen Wirtschaftsrecht Band 54, 2009, p. 259; andThyri, Kartellrechtsvollzug in Österreich, 2007, p. 20.

38 CFEU of 13 July 1989, 5/88 Hubert Wachauf � Bundesamtfür Ernährung und Forstwirtschaft, para. 19.

39 Opinion of Advocate General Kokott of 29 April 2010,C-550/07 P Akzo Nobel Chemicals Ltd and Akcros Chemi-cals Ltd � Commission, para. 129.

40 Judgment, para. 102.41 See, among others, CFEU of 11 September 2003, C-13/01

Safalero Srl � Prefetto di Genova, para. 49; CFEU of 16 De-cember 1976, 33/76 Rewe-Zentralfinanz eG and Rewe-Zentral AG � Landwirtschaftskammer für das Saarland, para.5; and CFEU of 20 September 2001, C-453/99 Courage Ltd� Bernard Crehan, para. 29.

42 Gippini Fournier, Legal professional privilege in competitionproceedings before the European Commission: beyond thecursory glance, in: Hawk (ed.), International Antitrust Lawand Policy 2004, Annual Proceedings of the FordhamCorporate Law Institute, 2005, p. 654.

43 CFEU of 21 September 1983, 205 to 215/82 DeutscheMilchkontor GmbH and Others � Federal Republic ofGermany, para. 17.

44 Nehl, Europäisches Verwaltungsverfahren und Gemein-schaftsverfassung: Eine Studie gemeinschaftsrechtlicher Ver-fahrensgrundsätze unter besonderer Berücksichtigung«mehrstufiger» Verwaltungsverfahren, 2002, p. 448.

45 Weiler, The jurisprudence of human rights in the EuropeanUnion: integration and disintegration, values and processes,Harvard Jean Monnet working paper series; no 2/96, p. 9.

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Das Urteil betrifft die urheberrechtliche Vergü-tungspflicht für Privatkopien. Der EuGH hat ent-schieden, dass der in Art. 5 Abs. 2 lit. b) der Richt-linie 2001/29/EG normierte Begriff des «gerechtenAusgleichs» autonomes Unionsrecht darstellt unddeshalb in allen Mitgliedstaaten einheitlich auszu-legen ist. Die Berechnung des «gerechten Aus-gleichs» im Sinne des Art. 5 Abs. 2 lit. b) der Richt-linie 2001/29/EG hat sich zwingend am Schadenzu orientieren, welcher den Urhebern aufgrundder Einführung des Privatkopienprivilegs entsteht.Als Schuldner des Ausgleichsanspruchs kommennicht nur die natürlichen Personen in Betracht,welche die Privatkopien anfertigen. Die Richtlinie2001/29/EG hindert die Mitgliedstaaten nichtdaran, den Anspruch gegenüber denjenigen zugewähren, welche über Anlagen, Geräte und Me-dien zur digitalen Vervielfältigung verfügen und siezu diesem Zwecke Privatpersonen rechtlich odertatsächlich zur Verfügung stellen oder für dieseVervielfältigungsdienstleistungen erbringen. EineRegelung, welche die Vergütungspflicht auch aufGeräte erstreckt, die nicht von natürlichen Perso-nen und zu eindeutig anderen Zwecken als der An-fertigung von Privatkopien genutzt werden, ist mitArt. 5 Abs. 2 lit. b) der Richtlinie 2001/29/EG nichtvereinbar.

(1) SachverhaltDie Sociedad General de Autores y Editores deEspaña (SGAE) ist eine spanische Verwertungs-gesellschaft für Rechte des geistigen Eigentums.

Die Padawan SL vertreibt CDs, DVDs und MP3-Ge-räte in Spanien. Aufgrund dessen verlangte dieSGAE die Zahlung der in Art. 25 TRLPI 1 vorgese-henen «Abgabe für Privatkopien» für dieJahre 2002 bis 2004. Hiergegen wandte sich Pa-dawan, da sie in der unterschiedslosen An-wendung der Abgabe auf digitale Träger ohneDifferenzierung nach ihrem Verwen-dungszweck (privater Gebrauch oder ge-werbliche Tätigkeit) einen Verstoss gegen dieRichtlinie 2001/29/EG 2 sah. Die Klage der SGAEvor dem Juzgado de lo Mercantil n° 4 de Barce -lona war in vollem Umfang erfolgreich undPadawan wurde zur Zahlung verurteilt.

Gegen dieses Urteil legte Padawan Berufung ein.Die Audiencia Provincial de Barcelona setzte da-raufhin das Verfahren aus und leitete ein Vorab-entscheidungsverfahren ein, in welchem sie demEuGH folgende Fragen vorlegte:1. Impliziert der Begriff «gerechter Ausgleich»in Art. 5 Abs. 2 lit. b) der Richtlinie2001/29/EG eine Harmonisierung, unabhän-gig von der Befugnis der Mitgliedstaaten, diejeni-gen Vergütungssysteme auszuwählen, die sie für

II. Hannes Dreher, Konstanz*

Der urheberrechtliche Vergütungsanspruch für Privatkopienaus europäischer Sicht(Padawan SL � Sociedad General de Autores y Editores de España(SGAE), EuGH (Dritte Kammer),Urteil vom 21. Oktober 2010, C-467/08)

II