No Attorney Client Privilege for In-House Lawyers Under EU Law

Francoise Gilbert

On September 14, 2010 the European Court of Justice (ECJ) confirmed that there is no attorney-client privilege under EU law for communications with in-house counsel when a company is under investigation by the European Commission.

In its ruling in the case of Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd v European Commission, the European Court of Justice affirmed a prior decision of the European General Court that had rejected a claim for legal professional privilege over the company’s communications with its in-house lawyer. The court reasoned that in-house lawyers are economically dependent on their employers, and thus cannot be regarded as independent.

For communications to be privileged, they must be made for the purposes and in the interests of the client’s rights of defense, and with an independent lawyer who is not an employee of the company.  In addition, the lawyer must be admitted to practice in an EU member state

While the rule above applies to matters before European Union institutions, the rule of an EU Member State will apply to matters reviewed at the country level.  Some European countries, such as Ireland, Netherlands, and the United Kingdom, recognize a privilege for communications with in-house counsel when the in-house counsel is a regulated legal professional acting as a lawyer.

Press release of the Court of Justice of the European Union:

http://curia.europa.eu/jcms/upload/docs/application/pdf/2010-09/cp100090en.pdf