In an investigation at Akzo’s premises, carried out in 2003, Commission officials seized documents, including emails, exchanged between Akzo’s coordinator for competition law (who is a member of the Netherlands Bar) and the General Manager of Akcros, which is a joint venture partner of Azko.  Claiming that the emails were subject to legal professional privilege, Akzo requested the return of the documents, but the Commission rejected and the General Court supported the Commission’s decision.  Akzo appealed to the CJEU.

In September 2010, the CJEU ruled that internal company communications with in-house lawyers are not covered by legal professional privilege, on the ground that an in-house lawyer does not enjoy a level of professional independence comparable to that of an external lawyer. Consequently, EU law recognises only legal professional privilege for legal advice given by external EU-qualified lawyers.

Key Point to Note

This decision is restricted to Commission investigations.  Where investigations are undertaken by national competition authorities, national privilege rules will continue to apply.  However, it leaves uncertainty as to the use of EU documents in national proceedings and as to disclosure of documents in the European Union that are privileged in the United States.