Canada: European Court of Justice Rules That no Privilege Attaches to Communications with In-House Counsel in European Commission’s Competition Investigations

On September 14, 2010, the European Court of Justice, Europe's highest court, ruled that communications between a company and its in-house lawyers are not covered by legal professional privilege (i.e., solicitor-client privilege in Canada) when the company comes under investigation by the European Union competition authorities.

Akzo Nobel Chemicals Ltd. v. Commission involved an appeal by Akzo challenging the Commission's seizure and use of two e-mail messages between the company and its in-house counsel during a 2003 search at the company's offices in the United Kingdom. The Commission was seeking evidence of possible anti-competitive practices. Akzo argued that e-mail communications between the company and its in-house lawyers were privileged, while the Commission asserted they were not. In 2007, the Court of First Instance held that the communications were not privileged; the European Court of Justice has now upheld this decision.

The court based its decision largely on in-house counsel's lack of independence due to the employment relationship: "An in-house lawyer cannot [...] be treated in the same way as an external lawyer, because he occupies the position of an employee which, by its very nature, does not allow him to ignore the commercial strategies pursued by his employer, and thereby affects his ability to exercise professional independence."

This reasoning is consistent with the same court's 1982 decision in AM & S Europe Ltd. v. Commission, in which the court set out two conditions for privilege to attach to written communications with lawyers: the exchange with the lawyer must be connected to "the client's rights of defence," and the exchange must emanate from an "independent lawyer," where an independent lawyer is "one who is not bound to his client by a relationship of employment." The Court in Akzo considered these conditions, and found that "It follows, both from the in-house lawyer's economic dependence and the close ties with his employer, that he does not enjoy a level of professional independence comparable to that of an external lawyer."

The court rejected Azko's argument that an in-house lawyer enrolled at a Bar or Law Society — as was the case here — is, on account of his obligations of professional conduct, subject to a high expectation of discipline and ethics, and is therefore as independent as external counsel. In addition, the appellants argued that there had been significant recent developments in the legal landscape since 1982 — notably, several Member States had extended legal professional privilege to communications with in-house lawyers — and thus the judgment in AM & S should be revisited. The court also rejected this argument, noting that there was no clear move to recognize legal professional privilege for in-house counsel across the membership.

The judgment is perhaps not surprising in light of the Advocate General's advisory opinion issued in April, which suggested that the court dismiss the appeal for similar reasons as were ultimately accepted by the court. (The Advocate General — in this case, Juliane Kokott — is one of eight appointed legal advisors to the European Court of Justice; Advocates General deliver opinions to the court on legal questions though their opinions are not binding on the court).

The court's decision is the final ruling on this subject.

McCarthy Tétrault Notes

The reasoning in Akzo diverges from Canadian and US law under which solicitor-client privilege attaches to communications with all lawyers, in-house or external, for the purpose of seeking or providing legal advice, and has significant implications for dealings with companies operating in Europe and those involved in European Commission competition proceedings.

It would be prudent for in-house counsel in Europe to provide competition law advice only in a non-written or otherwise recordable manner. Companies may also wish to engage external counsel early on to ensure privilege is protected, and should even consider excluding in-house counsel from discussions. This ruling will be expensive and time-consuming for companies that will now have to rely more heavily on external lawyers.

The decision has been heavily criticized by competition lawyers, both domestically and in Europe, for failing to recognize the value and independent judgement of in-house counsel. It also runs contrary to the notion that in-house counsel should be the primary enforcer of and advisor on competition law compliance and, in that sense, may detract from the objective of encouraging compliance with those laws.

With respect to communications with non-European-qualified counsel, although not specifically addressed in the decision, the Advocate General opined that legal professional privilege should not be extended to communications with in-house lawyers who are members of a Bar or Law Society in a third country, on the basis of a lack of recognition of the qualifications and ethical obligations of those lawyers. Thus, Canadian in-house counsel, as well as non-European-qualified external counsel here, should be cautious when advising companies that are active in Europe, particularly when contemplating providing (or copying) written (e-mail) advice to employees of those companies in Europe.

Another reason that Canadian counsel (both in-house and external) should take note of this decision is that competition investigations are frequently international in nature and can involve sharing of information among antitrust authorities. This decision raises the spectre that European in-house communications obtained by the European Commission could be shared with foreign authorities.

While the decision in Akzo applies only to communications between companies and in-house counsel during European Commission competition investigations, there is also a concern that the reasoning could eventually be applied to further limit legal professional privilege under European Union law more generally.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.