Legal professional privilege in European Commission competition investigations

The recent decision of the Court of First Instance (CFI) in joined cases T-125/03 & T-253/03, Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd v Commission of the European Communities highlighted some important points for companies and their in-house counsel in relation to claims of legal professional privilege during European Commission competition investigations.

Communications between in-house counsel and internal clients are not privileged 

The CFI confirmed that, as a general rule, legal professional privilege can only be claimed in respect of communications between a lawyer and his client to the extent that the lawyer is 'independent', that is, he is not bound to his client by a relationship of employment.

Investigation procedure

The CFI also clarified the procedure to be followed if a company claims privilege over documents during an investigation.  It is now clear that the Commission should not read any disputed documents until the company has had the opportunity to ask the Court to determine the issue.  The Commission may not even take a cursory look at the documents in question, if that would reveal the contents of those documents.  Officials may, however, place a copy of the document in question in a sealed envelope and then remove it pending a resolution of the dispute. 

For any enquiries relating to this case, please contact Martin Baker or your usual contact at Taylor Wessing.