Advocate General's Opinion on Akzo Nobel/Akcros Chemicals

On 29 April 2010 Advocate General Kokott gave an opinion in relation to an appeal by Akzo Nobel Chemicals Limited and Akcros Chemicals Limited. The opinion has confirmed the position in the previous case of AM&S v Commission [1982] ECR 1575 that communications with in-house lawyers do not attract legal professional privilege under EU competition law. In essence, the Advocate General reasoned that in-house lawyers were in a different position to external lawyers because they do not enjoy the same degree of independence.

In-house lawyers should be mindful that any communication with, or advice they provide to, their commercial colleagues on competition issues may be scrutinised by the Commission during an investigation. Legal privilege will only extend to advice from independent external lawyers. It should be noted that the OFT is subject to English Law and, in contrast, does accept that advice from an in-house lawyer may be privileged.

It is expected that the ECJ will hand down its judgment later this year.

Lawyers Robert Vidal, Louisa Penny