International Commercial Law Blog

Legal advice from in-house lawyers is not protected by legal professional privilege

The European Court of Justice (see judgment in Case C-550/07 Akzo Nobel Chemicals Ltd v Commission) has ruled that in the competition field the European Commission has the right to seize and use as evidence legal advice given by in-house lawyers.

In its judgment the European Court of Justice has confirmed the existing position under EU Law that legal advice from in-house lawyers is not protected by legal professional privilege.

The Court had the opportunity to give a ruling on the extent of legal professional privilege (see judgement in Case C-155/79 AM&S Europe v Commission), holding that it is subject to two cumulative conditions. First, the exchange with the lawyer must be connected to “the client’s rights of defence” and, second, that the exchange must emanate from “independent lawyers”, that is to say “lawyers who are not bound to the client by a relationship of employment”.

As regards the second condition, the Court, in its judgment, observes that the requirement that the lawyer must be independent is based on a conception of the lawyer’s role as collaborating in the administration of justice and as being required to provide, in full independence and in the overriding interests of that cause, such legal assistance as the client needs.

It follows that the requirement of independence means the absence of any employment relationship between the lawyer and his client, so that legal professional privilege does not cover exchanges within a company or group with in-house lawyers.

The Court did not address the question of whether advice from non-EU qualified lawyers should be protected by legal professional privilege, leaving the position as it currently stands, namely that the advice is not protected.

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