ECJ Advocate General Recommends That Court Not Extend EU Legal Privilege Protection to In-house Lawyers

On 29 April 2010, Advocate General ("AG") Juliane Kokott at the Court of Justice of the European Union ("ECJ") issued her opinion in Akzo Nobel Chemicals Ltd and Akcros Chemicals LTD v European Commission (Case C-550/07 P). This case deals with the question whether, in the context of European Commission ("Commission") investigations and proceedings, communications with in-house lawyers are protected by the legal professional privilege. The AG recommends that the ECJ should say that such communications are not protected. If the Court follows the approach the AG suggested—as it normally does—no communications between the management of a company and its in-house lawyers will be protected from search and disclosure in EU investigations and proceedings.

Background

This case stems from a Commission investigation into a cartel on the plastic additives market. During a dawn raid at the premises of Akzo and Akcros in the United Kingdom in February 2003, the Commission copied and placed in its file two e-mails exchanged between the general manager of Akcros and a member of Akzo's in-house legal department, who was admitted as a lawyer to the Netherlands Bar. Akzo and Akcros brought a challenge before the General Court, arguing that the communications were protected by legal professional privilege and therefore that the Commission should not be permitted to have access to them and other privileged documents (Cases T-125/03 and T-253/03). The General Court dismissed this challenge on the basis of an earlier ECJ ruling on the scope of legal professional privilege.

Earlier ECJ Ruling on Privilege

The authority relied upon by the General Court in rejecting Akzo and Akcros' challenge dates back to the 1982 AM&S case (Case 155/79). In AM&S, the ECJ recognized that the confidentiality of written communications between lawyer and client must be protected only if:

the communication with the lawyer has a connection with the exercise of the client's right of defense, that is, it was a "communication" made "for the purposes and in the interests of the client's rights of defence"; and it is a communication with an independent lawyer, that is, a lawyer who is "not bound to the client by a relationship of employment." The issue considered by the AG in her Akzo opinion concerns only the second of these criteria, the independence of the lawyer with whom communications are exchanged.

AG Opinion

Akzo and Akcros, supported by the IBA, the Netherlands Bar and may other...