In Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd v Commission (2007), the European Court of First Instance (the CFI) reaffirmed the existing EU case law that in dawn raid situations involving investigations by the European Commission and/or national enforcement authorities under the EU competition rules, in-house lawyers do not enjoy the protection of legal privilege that applies to independent lawyers who are not bound to their client by a relationship of employment and are registered with, and subject to the professional discipline and ethics rules of, a Law Society or Bar Association of an EU Member State.
Akzo Nobel had filed an appeal before the CFI against a decision by the European Commission following the Commission's raids on its offices in 2003 in relation to an investigation into alleged price fixing under the EU competition rules.
Akzo Nobel argued, supported by interventions from several national Law Societies and Bar Associations in the EU, that, inter alia, the Commission was not entitled to seize (i) a series of handwritten notes taken by an employee of the company in preparation for a request for legal advice from an outside counsel, or (ii) certain e-mail correspondence between Akzo's in-house lawyers and an employee of the company, on the grounds that they were protected by legal professional privilege.
Reaffirming the 1982 decision of the European Court of Justice in the case AM&S, the CFI rejected Akzo's arguments, holding that legal professional privilege only applies to advice given to companies by lawyers registered with the Law Society or Bar Association of an EU Member State that are independent, not inhouse lawyers bound to their client by a relationship of employment.
This contrasts with the position in England and Wales, as well as in other EU Member States, where communications between in-house lawyers and their employers may attract legal professional privilege, and the CFI's decision has attracted strong criticism from, amongst others, the Law Society of England and Wales. However the CFI did extend the protection of legal professional privilege to internal company documents prepared for the exclusive purpose of seeking legal advice from an independent outside lawyer in the exercise of rights of defence in respect of current or foreseeable EU competition investigations, regardless of whether such documents are ever actually sent to such an independent outside lawyer. Previously, internal company documents only attracted legal privilege to the extent that they merely summarised or reported advice from an independent outside lawyer.
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