The European Court of Justice has ruled that in-house counsel do not benefit from legal professional privilege (LPP) under EU competition law, in case C-550/07 P Akzo v Commission. Only external counsel, not bound by an employment contract with their client, can benefit from LPP.
This highlights the need for companies to carefully assess the risk of internal communication on sensitive issues with competition law relevance.
In February 2003, the European Commission, assisted by the UK's Office of Fair Trading dawn raided Akzo Nobel's premises in the UK in the context of a cartel investigation. Among the seized documents were e-mails exchanged between the general manager and an in-house counsel, admitted to the Netherlands Bar.
Akzo challenged the Commission Decision to seize those documents before the General Court and ultimately before the Court of Justice.
In its judgment of 14 September 2010, the Court of Justice upheld its case-law dating from 1982 (AM&S) by ruling that LPP is only applicable to documents that:
- have been prepared for the exercise of the client's right of defence; and
- are exchanged with an independent lawyer, that is to say a lawyer who is not bound to the client by a relationship of employment.
Interestingly, the Court does not mention that external counsel must be a member of the Bar or Law Society of one of the EU Member States. However this follows from earlier case-law and does not seem to be reassessed in the present judgment.
Over the years, this case-law has only been slightly extended to include internal notes which are confined to reporting the content of external legal advice and preparatory documents drawn up exclusively to seek legal advice from an external lawyer.
The Court rejected the arguments according to which LPP should be granted to in-house counsel since their situation, and their treatment under certain national laws, has materially changed since 1982. The Court considered that in-house counsel do not enjoy the same degree of independence as an external lawyer, since they are economically dependent and cannot ignore the commercial strategies of their employers. The fact that an in-house counsel is a member of a Bar or Law Society is immaterial in this respect.
The Court also considered that the evolution of procedural regulations in competition law (notably, the abolition of the possibility of notifying an agreement to the European Commission), requiring more self-assessment and therefore a higher level of involvement of in-house counsel, does not warrant a change in the case-law.
More than ever, companies should take into account that all their internal communication, including correspondence with in-house counsel may be seized by the European Commission or a national competition authority applying EU competition law. It may therefore be advisable to discuss particularly sensitive issues only orally with in-house counsel, who can then safely seek the advice of external counsel.
The advice of external counsel as well as internal notes quoting the text or reporting the content of such advice and documents that have been drawn up exclusively to seek the advice of external counsel remain privileged and should always be clearly marked as such. It is also advisable to keep hard copies of such document in a separate file and save electronic copies in a separate folder.
In case of a dawn raid, every representative of the authority should be accompanied by a member of the legal department of the company or by external counsel, to ensure that no privileged document is seized, copied or even read by the authority. In case of doubt, where privilege cannot be inferred from a cursory look at the heading, names or signature, the documents must be placed in a sealed envelope. These documents may then not be read by the authority until it has adopted a formal decision on disclosure of the document, which is subject to appeal before the General Court.