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In-house lawyer privilege dealt blow by Advocate General Kokott

10 May 2010

On 29 April 2010 Advocate General Kokott gave an opinion on the appeal by Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd in relation to communications with in-house lawyers, concerning European Commissions competition investigations.

This case involved an argument about whether certain documents obtained during a dawn raid at the companies’ UK premises could be used against the company in such an investigation – the company sought to use legal professional privilege to prevent their use.

There is currently an appeal lodged with the European Court of Justice (ECJ), expected to be heard later this year.

Advocate General Kokott has recommended that the ECJ dismiss the appeal in its entirety. She confirmed the view of the Court of First Instance that in-house lawyers are not sufficiently independent from their employers (compared to external lawyers) to justify the extension of legal professional privilege.

Further, she does not believe that there is any basis for arguments that the current EU legal position should be extended due to changes in legal practice or the legal framework.

In addition, the Advocate General did not accept arguments that depriving in-house lawyers of the benefits of legal professional privilege amounts to a breach of legal certainty, the rights of defence, or national procedural autonomy.

This follows EU case law where there is a long established principle that lawyer/client communications only attract protection where the lawyer is ‘independent’ – the key here being the perceived lack of independence of in-house counsel.

Whilst opinions of the Advocate General are not binding on the ECJ, experience shows that in practice the ECJ does tend to follow them.

This is a significant blow to in-house lawyers, especially in jurisdictions such as the UK where their independence is recognised, and they will be very disappointed with the stance taken by Advocate General Kokott. Watch this space for further developments.

To see the opinion in full, please visit: http://curia.europa.eu/jcms/upload/docs/application/pdf/2010-04/cp100040en.pdf

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