ECJ hands down decision in Akzo Nobel/Akcros Chemicals relating to legal professional privilege and in-house lawyers

On 14 September 2010 the ECJ handed down its long awaited judgement in relation to an appeal by Akzo Nobel Chemicals Limited and Akcros Chemicals Limited and confirmed the position in the previous case of AM&S Europe v Commission [1982] ECR 1575 that internal company communications with in-house lawyers do not attract legal professional privilege under European competition law.

The ECJ considers that in-house lawyers are in a different position to external lawyers, due to the in-house lawyer's relationship of employment with his client. The in-house lawyer is economically dependent on and has "close ties" with his employer, resulting in a different level of professional independence from that which is enjoyed by an external lawyer. This is despite any professional ethical obligations to which in-house lawyers are subject. Accordingly, internal communications between in-house lawyers and the employer are not legally privileged.

In-house lawyers should be mindful that any communication with, or advice they provide to, their commercial colleagues on matters that may give rise to competition issues may be scrutinised by the Commission in the context of a European 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.

Click to view Akzo Nobel Chemicals and Akcros Chemicals v Commission and Others.

Lawyers Robert Vidal, Louisa Penny