LEGAL PRACTICE : AKZO CASE - LEGAL PROFESSIONAL PRIVILEGE - COMMUNICATIONS - IN-HOUSE LAWYER - INDEPENDENCE PROFESSIONAL - ETHICAL OBLIGATIONS - RELATIONSHIP WITH THE COMPANY

The legal professional privilege after the 2010 Akzo judgment

The judgment of the EU Court of Justice in the AKZO-case on the scope of the legal professional privilege (LPP) of the 14th September 2010 confirms the existing case law. Communications with an in-house lawyer are not protected under the LPP in the context of EU Commission competition law proceedings. Even if an in-house lawyer is admitted to the Bar and if his independence and professional ethical obligations are at least equivalent to those of outside lawyers, the employment relationship with the company prevents him from being truly independent, according to the ECJ. In first instance the (now) General Court did, however, clarify important procedural aspects relating to the way protection under the LPP for specific documents can be claimed by companies and examined by the EU Commission during inspections.

1. Following approximately seven years of extended litigation, discussed in previous issues of Concurrences [1] the last phase of the Akzo litigation relating to the personal scope of legal professional privilege (« LPP ») has finally come to an end with the European Court of Justice's (« ECJ ») seminal judgment handed down on 14 September 2010 [2]. Largely in agreement with the Advocate General's (« AG ») reasoning, the ECJ confirmed that legal professional privilege should not be recognized between in-house lawyers and their employers in the EU. Therefore, a document which would benefit from legal privilege under Dutch Law because it was produced by an in-house lawyer (called to the Dutch Bar and subject to the same ethics rules as self-employed lawyers) for his employer, is subject to

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Rein Wesseling, Miranda de Savorgnani, The legal professional privilege after the 2010 Akzo judgment, février 2011, Concurrences N° 1-2011, Art. N° 33933, www.concurrences.com

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