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Legal professional privilege

 

17 May 2010

Advocate-general's opinion  

Advocate General Kokott (AG) recommended that the Court of Justice confirm the General Court (formerly the CFI) judgment that communications of business people with in-house lawyers are not protected by legal professional privilege in cartel investigations by the European Commission.

AG 's opinion

The AG issued on 29 April 2010 her opinion on the appeals brought by Akzo against a General Court judgment that denied the application of legal professional privilege to communications of business people with in-house lawyers. She stated that:

  • the protection of communications between a lawyer and his client under EU law applies solely to communications of a legal nature;
  • a salaried in-house lawyer, notwithstanding any membership of a Bar or Law Society, does not have the same degree of independence from his employer (as compared to lawyers working in an external law firm) to justify the extension of legal privilege and in consequence, equal treatment of both professional groups with regard to legal professional privilege is not required as a matter of law; and
  • depriving in-house lawyers of the benefits of legal professional privilege does not amount to a breach of legal certainty, the rights of defence or national procedural autonomy.

The AG therefore proposed that the Court of Justice reject the claim that communication of business people with in-house lawyers be covered by legal professional privilege and dismiss the appeal.

How does this affect in-house counsel in Belgium?

Within most of the 27 EU Member States there is no identifiable general trend towards extending legal professional privilege to in-house lawyers even when they are admitted to a Bar or Law Society. Legal professional privilege applies to communications with in-house lawyers in only a few Member States, such as the United Kingdom, Ireland and the Netherlands.

In Belgium, following the General Court judgment in Akzo, the College of Competition Prosecutors (Auditoraat/Auditorat) stated that it will no longer treat communications with in-house lawyers as legally privileged in procedures conducted on the basis of the Belgian Competition Act. This policy shift is highly contested and, arguably, may be in breach of the Act of 1 March 2000 establishing the Institute of in-house lawyers, which protects the confidentiality of communications with in-house lawyers who are members of the Institute. It therefore remains to be seen whether the Belgian Competition Council and, as the case may be, the Court of Appeal will follow the College of Competition Prosecutors' approach. However, the College of Competition Prosecutors will probably feel reassured by the AG's opinion and it may be expected that when conducting inspections it will deny the application of legal professional privilege to communications with in-house lawyers.

Links

AG Opinion: in English, French and Dutch

Judgment in Joined Cases T-125/03 and T-253/03Akzo Nobel Chemicals & Akcros Chemicals v Commission: in English, French and Dutch

For more information, please contact Dirk Arts (dirk.arts@allenovery.com) or Werner Eyskens (werner.eyskens@allenovery.com) or Charles Pommiès (charles.pommies@allenovery.com) or Karel Bourgeois (karel.bourgeois@allenovery.com).

 

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