The Court of Justice of the European Union (the "Court") on 14 September 2010 handed down a landmark judgment in an appeal brought by Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd. The Court dismissed the appeal in its entirety, denying the application of legal professional privilege ("LPP") to communications between company representatives and their in-house lawyers in the context of EU competition investigations.
The judgment of the Court comes as no surprise since it follows the opinion of Advocate General Kokott and the judgment of the General Court. It draws a distinction between in-house lawyers, who are deemed not to be sufficiently independent from clients to benefit from LPP, and external lawyers, whose communications with clients remain protected by privilege. The effect of this is that any communications between salaried in-house lawyers and their employers will not be regarded as de facto protected by LPP, and may be subject to full review by the European Commission. This is exactly what happened in the present case, which concerned e-mails and notes seized by the Commission in the context of a cartel investigation. The e-mails were exchanged between the General Manager of Akcros, and a member of the Dutch bar, employed as the competition co-ordinator for Akzo Nobel.
Click here for more information on the Judgment.