Advocate General says that legal professional privilege should not apply to in-house lawyers

On 29 April 2010, the Advocate General (“AG” - Juliane Kokott) published an opinion in which she stated that legal professional privilege should not apply to in-house lawyers. The issue of whether the protection of communications between lawyers and their clients also extends to internal exchanges of opinions and information between the management of an undertaking and an in-house lawyer employed by that undertaking is the main focus of the appeal case against the Commission brought by AkzoNobel Chemicals Ltd (“Akzo”) and Akcros Chemicals Ltd (“Akcros”).

The case involves an email between the general manager of Akcros and an employee of Akzo’s in-house legal department who was also a member of the Netherlands Bar. Akzo claimed that its in-house lawyer was covered by rules governing independence set out in conditions for Bar membership in the Netherlands. However, the Court of First Instance, now General Court, following the existing case law on the matter, concluded that legal professional privilege did not cover in-house lawyers.

Agreeing with the CFI decision, the AG emphasised the risks to the internal market and the enforcement of competition if differing interpretations of legal professional privilege were allowed to prevail. In particular, the AG regarded the Bar membership as “exemplary” but argued that they are not capable of guaranteeing that enrolled in-house lawyers enjoy a degree of independence equal to that of external lawyers. As a result, the AG recommended that the appeal be dismissed.