The awaited Advocate General's opinion on the scope of legal professional privilege ("LPP") was given on 29 April 2010. It relates to an appeal brought against the Court of First Instance judgment in Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd v European Commission, and recommends that LPP should not be extended to include internal communications with in-house lawyers in relation to EU competition investigations.
Although not binding on the European Court of Justice ("ECJ"), this opinion is likely to be persuasive as such opinions generally tend to have a significant influence on the outcome of ECJ judgments. If followed, it will confirm that companies should consider the communications of their in-house lawyers, in relation to compliance with EU competition law, to be unprotected by LPP and likely to be ultimately seized by the European Commission.
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The awaited Advocate General's opinion on the scope of legal professional privilege ("LPP") was given on 29 April 2010. It relates to an appeal brought against the Court of First Instance judgment in Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd v European Commission, and recommends that LPP should not be extended to internal communications with in-house lawyers in relation to EU competition investigations.
Although not binding on the European Court of Justice ("ECJ"), this opinion is likely to be persuasive as such opinions generally tend to have a significant influence on the outcome of ECJ judgments. If followed, it will confirm that companies should consider the communications of their in-house lawyers, in relation to compliance with EU competition law, to be unprotected by LPP and likely to be ultimately seized by the European Commission.
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Background
On 17 September 2007, the Court of First Instance of the European Union (the "CFI", now called the General Court) rejected Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd's (the "Applicants") claim that the Commission had infringed their LPP, in 'forcing' the disclosure of certain documents prepared by their in-house lawyers during the course of a competition dawn raid in 2003.
The CFI, despite acknowledging that preparatory documents could in some circumstances be protected by LPP, rejected the claim in considering that the main purpose of the documents were protected by LPP, as their main purpose was not to seek xternal advice. Further, it held that the concept of independence, as established by the case of AM&S Europe Limited v European Commission ("AM&S"), meant that LPP would not cover advice from a lawyer in a relationship of employment with its clients.
The Applicants appealed against the CFI's judgment, seeking an order that it should be set aside insofar as it rejected the applicability of LPP for certain emails between the general manager of Akcros and its in-house lawyer. As noted above, Advocate General Kokott (the "AG") gave her opinion as to the merits of the appeal. Her recommendations are summarised briefly below.
To read the full text of the AG's opinion, please click here .
Opinion of the Advocate General
The key issues examined by the AG relate to whether, and if so to what extent, internal group or company communications with enrolled in-house lawyers are covered by the protective scope of LPP.
'Economic dependence' of in-house lawyers and the scope of LPP
The Applicants argued that the requirement established in the case of AM&S, namely that the lawyer in question should be 'independent' in order for LPP to apply to its communications with a client, should not be interpreted negatively so as to exclude enrolled in-house lawyers who have been admitted to a national Bar or Law Society. Rather, the Applicants argue, such a requirement should be interpreted positively, so as to take into account the fact that in-house lawyers are automatically subject to the professional and ethical obligations imposed on them, and as such, are independent from their employers.
The AG rejected this argument, on the basis that in AM&S, the requirement of independence was "unequivocally linked" to the fact that the lawyer in question "must not be in a relationship of employment" with his or her client. She considered that enrolled in-house lawyers, even if registered with a bar or law society and therefore bound by the same ethical duties as external lawyers, are "less able to deal effectively with any conflicts of interest between his professional obligations and the aims and wishes of his client than an external lawyer". The AG expanded on this reference to potential conflicts of interest, and gave the example that, if such an appeal were to be allowed, this could potentially open the door for companies to abuse the use of LPP, and misuse their own in-house legal departments by using them as a place to store illegal documents.
Further, and in response to the argument by the Applicants that in some EU jurisdictions (such as the Netherlands), regulations are in place which are specifically aimed at preventing conflicts of interest between in-house lawyers and the company at which they are employed, the AG stated that this does not deter from the fact that such in-house lawyers still have "complete economic dependence" on their employers. This is in contrast to external lawyers, who, the AG argued, are able to withdraw their services of their own accord should a conflict arise, and who are not dependent on one financial source of income, unlike in-house lawyers.
The AG also rejected the notion put forward by the Applicants that the status of enrolled in-house lawyers in the EU Member States has developed since AM&S in such a way, so as to reflect a trend in in-house lawyers being granted the benefit of LPP.
Therefore the AG concluded that, due to the greater economic dependence on and identification with its employer, an in-house lawyer cannot be said to have the requisite independence which is necessary for LPP to apply, in respect of his or her internal communications with its employers in such circumstances. As such, the emails which were exchanged between the in-house lawyer and the general manager of Akcros should not enjoy the benefit of LPP, and the appeal should be dismissed.
Comment
In many EU countries, LPP ordinarily extends to in-house lawyer communications. The British, Irish and Dutch governments as well as the Council of Bars and Law Societies of Europe have thus lent their support to the Applicants and lobbied extensively over the years for a change to the law as established by the AM&S case. By rejecting this approach, this opinion will therefore be a disappointment to many.
In effect, it reaffirms the EU view on harmonising LPP relating to competition investigations, which cannot be left to the procedural autonomy of the Member States. The AG stressed that this case related to the application of LPP solely in the context of European competition investigations, and that it should not be seen as creating a precedent to be applied in national courts in any other circumstances.
However, if the AG's opinion is followed by the ECJ, such a decision will no doubt be of significant concern, and will impact on the way in which companies across the EU conduct and record internal communications with their in-house legal teams. Companies should be aware that, should an EU law competition investigation be instigated, such internal communications will not enjoy the benefit of LPP, and as such, could be seized and used by the European Commission. Companies may wish to consider introducing internal policies to ensure such communications are only conducted orally, or through external lawyers going forward.
This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq
Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.
The original publication date for this article was 07/05/2010.
