Advocacy - Association of Corporate Counsel (ACC)

Akzo Decision Presents a Major Setback to Legal Professional Privilege and In-House Counsel

In its 14 September 2010 decision in Akzo Nobel Chemicals Ltd v. EU (Case-550/07), the Court of Justice of the European Union restricts the applicability of legal professional privilege to in-house counsel communications with clients, indicating that the independence of in-house lawyers is insufficient to justify professional status in European Community competition law matters.

[scroll down for ACC Member Briefings, including an ACC Executive Summary, Background, Status, and Practical Recommendations, and examples of LPP Practices Implemented by Six Multinational and/or European Legal Departments]

ACC and its European chapter, as Intervenors in the case, feel this ruling reflects a fundamental misunderstanding of both the role and responsibilities of in-house counsel, and the impact of financial remuneration on any lawyer retained by a client to represent the client’s legal interests.

In September 2007, the European Court of First Instance had rejected demands to extend the scope of legal professional privilege to communications between parties and their in-house lawyers. The ruling held that EU law should continue to follow the 1982 judgment of the European Court of Justice that held that privilege did not extend to internal communications involving in-house lawyers, and did not protect them from disclosure during competition investigations by the EU Commission.

The Association of Corporate Counsel, with pro bono support from at Covington & Burling, intervened in support of extending legal professional privilege to in-house lawyers, and will continue to advocate for proper recognition of the increased status and role of in-house lawyers in today’s commercial world and to modernize the concept of legal professional privilege.

ACC thanks Georg Berrish and David Hull at Covington, Brussels Office, for their help since 2007 on this matter, and also thanks to Bruno Cova of Paul Hastings, Milan Office, for his counsel and work on our ACC Member Briefings below.

ACC Member Briefing on AKZO Decision and Related Concerns

Legal Professional Privilege Practices and Analysis

Advocate General Opinion and ACC Analysis and Prior Updates

PRIVILEGE RESOURCES

MEDIA

LAW FIRM RELEASES

European Court of First Instance Holds Communications by Company Executives With In-House Lawyers are Not Privileged – Watchell, Lipton, Rosen & Katz
Legal Professional Privilege and the Akzo Judgment – Bird & Bird
Antitrust Update – Howrey
European Commission to pay compensation for illegal merger prohibition decision – Lawrence Graham LLP
Akzo Nobel v Commission: CFI confirms that legal professional privilege in competition cases does not apply to in-house lawyers – Berwin Leighton Paisner
No legal professional privilege for in-house lawyers in EU competition case – CMS Cameron McKenna
Legal professional privilege in the context of EC competition law – Denton Wilde Sapte LLP
EU court dismisses Akzo claim for legal privilege for in-house lawyers UPDATE – Sharewatch
CFI ruling in Akzo – No privilege for in-house lawyers – Herbert Smith
Akzo Judgment: The CFI Clarifies Scope and Procedural Safeguards for Claims of Legal Professional Privilege – Latham & Watkins
EU Court Decision: No Attorney Client Privilege for In-House Counsel – Baker Botts LLP
The Court of First Instance clarifies the extent of legal professional privilege in European Commission competition cases issue – Eversheds
Antitrust Law Blog
EU court clarifies legal privilege in European competition investigations – Freshfields Bruckhaus Deringer
Akzo: CFI denies in-house counsel legal privilege, but clarifies procedure and recognizes privilege for certain compliance audits – Cleary Gottlieb Steen Hamilton LLP
Euro court rules on in-house legal professional privilege – Shepherd & Wedderburn LLP