This ruling follows Advocate General Kokott's opinion issued on 29 April 2010 at first instance, that in-house lawyers are not protected by legal professional privilege in the EU competition context.
In February 2003, the Commission raided the UK offices of Akzo Nobel Chemicals Ltd (Akzo) and Akcros Chemicals Limited (Akcros) during a cartel investigation. The Commission took copies of numerous documents, including emails between Akcros' general manager and an Akzo in-house lawyer, who was a permanent employee. In the European General Court (EGC), Akzo and Akcros challenged the Commission's decision to seize the emails, on the basis that the emails were subject to legal professional privilege. The EGC held that the documents were not protected by privilege.
The ECJ's decision on the appeal by Akzo and Akcros was issued in September 2010. The ECJ upheld the EGC's decision that the documents were not protected by legal professional privilege. The ECJ emphasised that the confidentiality of written communications between lawyers and clients should be protected at Community level but only if two conditions are satisfied:
The communications must be made for the purpose of and in the interests of 'the client's rights of defence' in relation to the Commission's investigation. Importantly, privilege in this context does not include the UK concept of 'legal advice privilege', which covers communications between a client and its solicitor for the purposes of seeking or giving legal advice, whether or not litigation is contemplated.
The communications must be to or from an 'independent lawyer'. The ECJ concluded that an employee of the client cannot be an 'independent lawyer' in this context. Conflict may arise between a lawyer's duty to uphold the administration of justice and his concurrent duty to act in the best interests of his client. The ECJ emphasised that in-house lawyers have greater difficulty in dealing with such conflict, because they are less able to ignore their employers' commercial interests. Consequently, any communications between a company and its in-house lawyers are not protected by privilege in the context of EU competition investigations.
It is therefore crucial for companies who may face a Commission investigation to be aware that internal communications with in-house lawyers may be seized and used by the Commission.
When in-house lawyers are giving legal advice to the business particular care is needed. In-house lawyers need to ask themselves whether the advice could relate to competition issues. This might be the case, for example, when it involves distributorship arrangements, joint ventures with competitors or issues involving trade associations. If the advice could relate to a competition issue, then the lawyer must note the real risk that his communications, though containing legal advice, can be seized and used by European competition authorities in any subsequent investigation.
It is important that documents which are intended to be privileged are marked accordingly. Even though the label given to the document has no great bearing on its true status, the Commission has wide-ranging search and seizure powers and its default position will be to seize documents which are not appropriately marked.
If EU competition proceedings are in contemplation, it will usually be necessary to employ external counsel at an earlier time than would otherwise be the case. Not to do so would be to risk the Commission obtaining crucial information about the strategy being employed with respect to the company's response to the investigation.
This decision may be regarded as being of limited application as it relates only to EU competition investigations. However, if the investigatory powers of the EU increase in scope, the risk management practices highlighted above may need to be extended.