ECJ Rules Against Widening of Legal Professional Privilege for In-House Lawyers

The European Court of Justice ("ECJ") has today given its widely anticipated decision on the appeal of the 2007 General Court judgment in Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd v European Commission. The ECJ followed the Advocate General Kokott's Opinion of 29 April 2010, in finding that legal professional privilege ("LPP") should not be extended to internal communications with in-house lawyers in relation to European Commission ("EC") competition investigations.

The decision reinforces long-standing jurisprudence on the scope of LPP in EC competition cases, namely, that any communications between a company and its in-house lawyers which relate to compliance with EU competition law, are not protected by LPP and are therefore subject to seizure by the EC. This decision will be a blow to in-house lawyers and various professional bodies who intervened in the case.

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Full Article

On 17 September 2007, the General Court (then known as the Court of First Instance of the European Union) rejected Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd's (the "Applicants") claim that the EC had infringed their LPP, in 'forcing' the disclosure of certain documents prepared by their in-house lawyers during the course of a competition dawn raid in 2003.

The General Court, despite acknowledging that preparatory documents could in some circumstances be protected by LPP, rejected the claim that the documents were protected by LPP, as their main purpose was not to seek external advice. Further, it held that the concept of independence, as established by the case of AM&S Europe Limited v European Commission ("AM&S"), meant that LPP would not cover advice from a lawyer in a relationship of employment with its clients.

The Applicants appealed, seeking an order that the General Court's decision should be set aside insofar as it rejected the applicability of LPP for certain emails between the general manager of Akcros Chemicals Ltd and its in-house lawyer.

The key elements of the decision are summarised below, click here for the decision of the ECJ.

The ECJ's Decision

The Applicants contended that the criterion established in AM&S that a lawyer must be independent in order for his or her communications to be afforded the protection of LPP, should not be interpreted so as to exclude in-house lawyers. The Applicants argued that the rules of professional ethics and discipline applicable to an in-house lawyer...