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president of ECLA
Preservation of Attorney Client Privilege
by Corporate Counsel
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HOW TO IMPROVE THE POSITION OF IN HOUSE LAWYERS
Decision of the European Court of Justice
in AKZO Nobel case about Legal Professional Privilege
the case lead by the European Court of Justice
bound to the competition law, the decision was
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
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
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
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
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.
decision the ECJ explicitly states that because
of the employment relationship in-house counsel
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
and the governments of the United Kingdom, Ireland
and the Netherlands.
Further information: P.C.de Jonge
at email@example.com 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
considered on 30/09/2010
(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
In short, the Court held that the judgment of
the then Court of First Instance (now the General
in September 2007 - confirming that privilege in
EU investigations extends only to written communications
with external counsel - was correct.
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 Courts
1982 judgment in AM& S Europe v Commission.
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.
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
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.
Position of In-house lawyers
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