In September, the European Court of Justice (ECJ) gave its adjudication in the appeal case of Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd v Commission (C-550/07 P) that communications between in-house lawyers and colleagues do not enjoy legal professional privilege.
Akzo Nobel submitted that the criterion that a lawyer must be independent cannot be interpreted to exclude in-house lawyers. It argued that an in-house lawyer, enrolled at a Bar or Law Society is, simply on account of his obligations of professional conduct and discipline, just as independent as an external lawyer. It also outlined that the rules of professional ethics and discipline make the employment relationship fully compatible with the concept of an independent lawyer.
However the ECJ decided, inter alia, that in order for legal professional privilege to apply, a lawyer must be independent. Despite Akzo being supported by the United Kingdom, Ireland and the Netherlands, the ECJ ruled that due to an in-house lawyer’s economic dependence and close ties with his employer, this means that he/she does not enjoy a level of professional independence comparable to that of an external lawyer.
Notwithstanding the above, the national laws of privilege in each Member State remain unaltered. The Irish Courts have previously afforded in-house counsel the benefit of legal professional privilege in certain circumstances. Given that the ECJ judgment is in conflict with the position under Irish law, it is important to be clear as to which set of rules apply. The opinion of the Advocate General in the Akzo case indicates that the position is as follows: the EU rules apply when the European Commission carries out an investigation in a Member State. Where a national authority (e.g. for example the Irish Competition Authority) assists the Commission with its investigation, the EU rules will still be applicable. However, where a national competition authority undertakes its own investigation under its national legislation or under Article 101 or 102 of the Treaty on the Functioning of the European Union, the national rules on privilege will apply.