UK: Akzo Nobel: No Privilege For In-House Lawyers Under EU Competition Law

Last Updated: 21 September 2010
Article by Mike Pullen, Duncan Gillespie, Andrij Jurkiw, Alexandra Kamerling and Martin Rees

On 14 September 2010, the European Court of Justice (ECJ) confirmed in a landmark case that the concept of privilege under EU law does not extend to communications with in-house counsel. The long-awaited ruling in the case of Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd v European Commission brings an end to a highly controversial dispute which has far reaching consequences for businesses operating across Europe.

The European General Court had previously held that Akcros' internal communications with in-house counsel did not attract legal professional privilege under EU law.  On appeal to the ECJ, the appellants asked the court, inter alia, to set aside the judgment of the General Court insofar as it rejected the claim for legal professional privilege over the Company's communications with its in-house lawyer. The ECJ has upheld the General Court's judgment confirming that the EU rules are different from the rules on privilege that apply in many Member States (including the UK). 

At the EU level (and in many individual EU Member States) communications are not covered by privilege unless they are (i) made for the purposes and in the interests of the client's rights of defence, and; (ii) with an independent lawyer (i.e. a lawyer not bound to the client by a relationship of employment). This effectively means that communications with in-house counsel will not be privileged unless they are carefully drafted to demonstrate that they are made exclusively for the purpose of seeking legal advice from an external EU qualified lawyer. Note that previous EU case law makes it clear that a lawyer must be entitled to practice in a Member State to be able to fit the second criterion, which means that advice from lawyers qualified in other jurisdictions, e.g. the USA is not covered by privilege.

The ECJ's ruling follows the reasoning of Advocate General Kokott, who in an earlier Opinion, had reiterated the orthodox point that, because they are economically dependent on their employers, in-house lawyers cannot be regarded as independent regardless of whether they are admitted to a professional bar association.

The position taken by the ECJ in relation to privilege is in direct opposition to the position under the law in England and Wales (and also some other European jurisdictions such as Scotland, Ireland, Norway, Spain, Portugal and the Netherlands) where communications with in-house counsel are protected by legal privilege as long as the in-house counsel is a regulated legal professional and/or registered with a professional bar association and is acting in their capacity as a lawyer. For companies operating across multiple jurisdictions, the ECJ's decision confirms the need for separate procedures depending on which authority carries out an investigation. This gives rise to the potential for significant confusion about which rules apply in which cases.2

Moreover, the European Commission's investigative powers are already considered to be exceptionally broad since they include the power to enter and search the premises and vehicles of businesses (and the private homes of employees). With the EU poised to extend its regulatory reach into the fields of banking, insurance and securities, the inability of companies to claim privilege over communications with in-house counsel is a major concern.

Which rules apply when?

Representatives of national competition authorities may apply EU competition law (Articles 101 and 102 of the Treaty on the Functioning of the EU) in parallel with national provisions (Chapters I and II of the Competition Act 1998 in the UK). National competition authorities may also assist the European Commission to carry out an investigation under EU competition law and vice versa. In these circumstances, there is the potential for uncertainty about which privilege rules apply.

It is clear from the ECJ's ruling that the EU rules apply when the European Commission carries out an investigation in a Member State. Where a national authority assists the Commission in its investigation, the EU rules will be applicable. However, where a national competition authority undertakes its own investigation under its national legislation or under Article 101 or 102, the national rules on privilege will apply.

This leads to the somewhat arbitrary position that a company's ability to assert privilege over an internal document can depend on whether it is a national competition authority or the Commission that seeks to remove or be provided with the document concerned. A company under investigation will need to be vigilant, particularly during a dawn raid to ensure that privileged information is not unwittingly provided to a national competition authority in the mistaken belief that it must be surrendered under the EU privilege rules.

The ECJ also did not consider the specific issue of whether internal legal documents prepared in relation to compliance issues (e.g. the drafting of a compliance programme or ad hoc advice to the business regarding a specific project or concern) would satisfy the first EU condition for privilege, i.e. that it is connected with the client's rights of defence. As stated above, if carefully drafted to demonstrate that they are made exclusively for the purpose of seeking legal advice from an external EU lawyer, such documents should qualify for privilege. However, the Advocate General has stated that advice, internal correspondence and documentation prepared by an in-house lawyer for "compliance purposes" is unlikely to be subject to privilege under EU law because much of it is general in nature and has no specific connection with the current or future exercise of the rights of defence.

Guidance on protecting potentially privileged information post Akzo

When seeking advice on competition compliance companies will need to consider carefully whether it is appropriate or necessary for in-house counsel to provide advice in writing. Only in the  unlikely case that a company can be certain that national privilege rules would apply during any investigation should advice be sought from an in-house lawyer in writing.

Companies should also review internal compliance documents and dawn raid procedures to make sure that they reflect the ECJ's ruling regarding privilege.

Privilege may be better protected by following the guidance set out below:

  • Ensure that all questions relating to competition law issues are either directed straight to external counsel or marked clearly as having been prepared "for the purposes of seeking external legal advice". 
  • Avoid forwarding or copying external legal advice - circulate only on a need to know basis.
  • Do not summarise or annotate external legal advice. If circulated, written advice from an external lawyer should be provided in its original form without comment or opinion.
  • Keep all (electronic and hard copy) privileged communications in separate files marked "Privileged".  
  • Mark each page of a privileged document clearly as "Privileged and Confidential - External Legal advice". Put the same wording in the subject line of privileged emails. 
  • Remember that different privilege rules apply in different jurisdictions and to different investigating authorities.


1 Case 155/79,  A M & S Europe Limited v Commission, [1982] ECR 1575.

2 In her opinion, AG Kokott recognised that it would be simpler if the procedural provisions applicable to searches conducted under competition law and the associated rules on legal professional privilege were harmonised throughout the European Union. However, she stated that the issue of harmonisation of the different laws relating to legal professional privilege is a question of legislative policy for the European Union legislature alone to decide and it therefore seems likely that any harmonisation is likely to result in a blanket loss of privilege for in-house counsel.

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
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.