In the EU competition law context, the Advocate General's opinion in Akzo Nobel Chemicals Ltd v Commission of the European Communities (Akzo) was published on 29 April 2010. In line with the ECJ's earlier case law, Advocate General Kokott took the view that legal professional privilege should not be extended to protect communications between parties and their in-house lawyers in competition investigations by the EU Commission, on the basis that in-house lawyers are not sufficiently independent of their client who is also their employer. The appellants and a number of interveners had argued that, as a minimum, legal privilege should be extended to those in-house lawyers who are members of the bar or law society, but Advocate General Kokott held this to be insufficient to achieve the necessary independence for privilege purposes. The ECJ ruling is expected this October. Although the Advocate General's opinion is not binding on the ECJ, the final ruling tends to follow the opinion in the majority of cases.
This case does not affect the scope of privilege as a matter of English law, under which in-house lawyers continue to enjoy the same protection as external lawyers so long as they are acting in their capacity as a lawyer and not an executive. Please see our e-bulletin dated 29 April 2010 for more information on the Advocate General's opinion in Akzo.