A decision by the ECJ has confirmed that privilege cannot be claimed over communications between company employees and in-house lawyers. Akzo and Akcros argued that some communications between solicitor and client were privileged. In particular, privilege was asserted over emails passing between company officials and Akzo’s coordinator for competition law, who was a registered Advocaat of the Netherlands Bar and a member of Akzo’s legal department.
The ECJ found that the Akzo coordinator was bound to his client by an employment relationship and was therefore not capable of exercising strict legal independence from his client’s commercial interests. Legal professional privilege therefore did not apply. Similar arguments based on equal treatment between in-house and external lawyers were rejected by the ECJ on the same basis.
Companies operating in the EU taking in-house legal advice must continue to exercise caution over communications with in-house lawyers, because a claim for privilege cannot be successfully asserted. Indeed, the decision may well encourage regulators to seek production of these types of communications from in-house legal departments. Further issues may also arise involving advices or communications prepared jointly between inhouse lawyers and external legal advisors.