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Preservation of Attorney Client Privilege by Corporate Counsel
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Decision of the European Court of Justice in AKZO Nobel case about Legal Professional Privilege

In the case lead by the European Court of Justice bound to the competition law, the decision was reached on 14th September, 2010 in AKZO Nobel case. The European Court of Justice confirmed the decision of the General Court which denied legal privilege in completion law matters to company layers who are employed by companies. The explanation given by the Court does not represent a novelty that has not been already faced. The Court started from the fact referred by everybody talking about corporate layers and saying that a permanent working contract represents our dependency on the employer.
At the other hand, when an attorney-at-law represents a company he/she is independent and that independency gives him/her right to a privileged status when giving legal opinions. As one of our colleagues says it has not been a problem for the Court to reach the decision, when it already had the equation for which the result was known; the Court had only to explain that result. All of us working in economy now or those who used to work in economy, and also our colleagues attorneys-at-law, know that the things are like that on the paper only.
How long would last a contractual relationship between an attorney-at-law and a company, when the attorney-at-law was lead by the idea of independency only?
The answer is unambiguous: it would be very short. What is than in the employment contract of a corporate lawyer making it different from the contractual relationship of an attorney-at-law? Nothing, especially if we take law offices into consideration employing their lawyers and/or attorneys-at-law.
As you can see, dear colleagues, the judgement agitated public and our colleagues from Europe, and especially our colleagues from America who succeeded to organise their professional status in a logical and professional manner and who are ready to continue the battle. We will keep you informed on any further development of the situation.
All of you that are interested in the judgement itself and comments of our colleagues are invited to contact us by e-mail or telephone for any further details.

EUROPEAN COMPANY LAWYERS ASSOCIATION PRESS RELEASE

LUXEMBOURG, SEPTEMBER 14, 2010. The European Court of Justice has given its long awaited decision in the AKZO Nobel case about Legal Professional Privilege. By following the recommendation of the Attorney General Ms. Kokott, the court has confirmed the decision of the General Court which denied legal privilege in competition law matters to company lawyers who are employed by companies and who have only one employer. The ECJ held that company lawyers who are employed cannot act independently and therefore cannot be treated like outside counsel. ECLA's President Han Kooy said: "The consequences of this decision will be that the position of company lawyers will remain different from the position lawyers who are working in a law firm. Companies are not well served by this decision since they must rely on the costly services of law firms to communicate with their management on European competition law matters".
The General Court decided in 2008 that European Commission agents do not have access to these documents without permission of the General Court. In this decision the ECJ explicitly states that because of the employment relationship in-house counsel should not have legal privilege.
"We have waited over 30 years to get the decision of 1982 reversed and we are now back at square one. Therefore,we are very unhappy with the outcome” says Han Kooy from The Hague. “We will thoroughly study the motivation of the Court and will decide about our next steps shortly".
AKZO Nobel appealed against a decision of Commission agents taking documents from AKZO premises near Manchester. AKZO was joined in the case by eight intervenors: the Netherlands Bas Association (Nederlandse Orde van Advocaten), the International Bar Association, the Council of Bars in the EU, the International Bar Association, the American Corporate Counsel Association and the governments of the United Kingdom, Ireland and the Netherlands.
Further information: P.C.de Jonge at pdejonge@ecla.org or +31 70 392 044131 or +31 6 53 50 74 77(M)

European Court denies legal professional privilege to communications with in-house counsel - Implications considered on 30/09/2010

Earlier today (14/09/2010), the European Court of Justice (the EU's "Supreme Court") delivered the long-awaited judgment in Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd v Commission (Case C-550/07 P).
In short, the Court held that the judgment of the then Court of First Instance (now the General Court) in September 2007 - confirming that privilege in EU investigations extends only to written communications with external counsel - was correct.
Furthermore, today the Court did not depart from the Opinion of its Advocate General Kokott delivered last April who held (among others) that to attract privilege a communication must be with an independent lawyer who is "not bound to the client by a relationship of employment" and that the evolution of the legal system of the EU and the arrival of Regulation 1/2003 six years ago did not justify a change in the case-law established by the Court’s 1982 judgment in AM& S Europe v Commission.
Finally as the Court did not revisit the question today, the AM&S Europe v Commission case-law according to which privilege attaches only to communications from independent attorneys admitted to a Bar in the European Economic Area (EEA) continues to be law as regards EU antitrust proceedings.
Brussels Matters hosts the first teleconference discussion on the implications of the Akzo ruling on 30/09/2010 - details at www.brusselsmatters.eu

English interset in Akzo appeal

The Law Society of England and Wales has joined ECLA in applying for permission to intervene in the closely-watched European case Akzo Nobel that has threatened in-house lawyers' ability to claim proffesional privilege.
The soceity-which is the representative body for 110.000 solicitors-has written to the European Court of Justice requesting permission to speak at a forthcoming appeal during which Akzo Nobel, the Dutch chemicals group, will challenge the European ruling that drew a significant distinction between the status of in-house and external lawyers.
It was the British subsidiary of Akzo Nobel that was raided by the European Commission's competition directorate-general in 2003. The commision's removal of documents that has passed between Akzo managers and in-house lawyers led to the original case, which was finally decided last September, when the European Court of First Instance (CFI) said discussions with in-house lawyers were not covered by legal privilege.
Law Society chief executive Des Hudson described the application to intervene as a "real step forward". He said: "I am confident that the court will see the merits of allowing us to participate in this case, given the arguments we have submitted and the longstanding experience we have of privilege issues. It is time for the EU court to update its case law."
He added that the society would argue the CFI's decision represents a threat to the right of clients to communicate openly and in confidence with their in-house lawyers, "a privilege which is crucial in the business community".
The ECI will decide whether to allow the law society to intervene in the next few weeks. It is common for professional bodies and other interested parties that are not involved in a dispute to be given permission to speak when cases are appealed.

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