ECJ rejects in-house legal privilege plea

EUROPE’S legal community was disappointed yesterday after the European Court of Justice (ECJ) refused to grant privilege protection to in-house lawyers practising on the continent.

The ECJ handed down the judgement yesterday morning after a lengthy battle, which called into question whether Europe’s in-house lawyers should receive privilege rights during investigations by competition officials.

The legal privilege rule protects any communication between a lawyer and a client, making it confidential and out of reach from third parties. In-house lawyers working in the UK and US currently receive protection from the legal privilege rule.

But companies in Europe will have to be cautious when corresponding with in-house legal teams as any communication can be confiscated and used during a probe.

The dispute itself stems from a 2003 raid on Akzo Nobel by EU officials, which took documents that thecompany argued were confidential communications between employees and in-house council.

Members from the legal and business communities lashed out at yesterday’s decision by the ECJ.
“The ECJ’s decision today represents a real missed opportunity to modernise EU rules on legal privilege,” said Dave Anderson, a lawyer with Berwin Leighton Paisner.

“Companies need to be able to confer frankly and confidentially with their in-house lawyers on antitrust matters. The current rules, confirmed today by the ECJ’s decision, hinder that severely by making such internal communications vulnerable to discovery in EU antitrust dawn raids,” said Anderson.

Matthew Fell, CBI director for competitive markets, said: “We are very disappointed that the court has not taken the opportunity to bring the case law up to date.”