Attempts to extend legal professional privilege to internal company communications with in-house lawyers in EU competition cases have been dashed, following a ruling by the European Court of Justice (ECJ) on 14 September 2010 in the Akzo Nobel case (C-550/07P). Akzo Nobel and Akros argued that correspondence between the company’s management and its in-house lawyer obtained during a cartel investigation should be protected by legal professional privilege. The ECJ rejected this argument, on the basis that the view that an in-house lawyer does not enjoy the same degree of independence from his employer as a lawyer in an external law firm does in relation to a client. For the purposes of EU competition law the position remains that to benefit from legal professional privilege:
- The exchange with the lawyer must be connected with the client’s rights of defence;
- The exchange must emanate from ‘independent lawyers’; and
- In order to qualify as an ‘independent lawyer’ the lawyer must not be bound to the client by a relationship of employment.
In reaching this view, the ECJ took into account the fact that there was no overall trend in EU national law recognising the rights of in-house lawyers.