In-house Counsel Privilege in Antitrust Proceedings
News    ·   01-03-2013

AUTHOR: Rya Gatt

In September 2010, the CJEU handed down its decision in the case of Akzo Nobel Chemicals Limited and Akcros Chemicals Limited v Commission of the European Communities, holding that, under EU competition law, communications with in-house lawyers within a company or group were not covered by the Legal Professional Privilege, essentially because such lawyers did not have the requisite degree of "independence".

In Akzo Nobel, during an investigation by the Commission into alleged anti-competitive practices, the undertakings subject to the investigation asserted Legal Privilege over certain documents including emails exchanged between non-legal employees and an in-house lawyer. Their claims were rejected by the Commission and the dispute went to the CFI (now the General Court). The CFI dismissed Akzo's arguments, finding that none of the documents were covered by the privilege. On appeal, the ECJ (now the CJEU) affirmed the decision of the CFI.

According to the ECJ, in order for a communication between a lawyer and client to be protected by this privilege, the communication must be made for the purposes, and in the interests, of the client's rights of defence, and the lawyer must be “independent” that is, not bound to the client by a relationship of employment.

Contrary to the position taken by the CJEU, on 5 March 2013, the Brussels Court of Appeal recognized that, under Belgian law, legal advice rendered by in-house lawyers and related correspondence is in fact confidential. The Court based its reasoning on Article 5 of the law of March 1, 2000, creating the Institut des Juristes d’entreprise/Instituut voor Bedrijfsjuristen which provides that “opinions given by in-house counsel, for the benefit of his employer and in the context of his activity as in-house counsel, are confidential." The Court read this provision in conjunction with Article 8 of the European Convention for Human Rights which ensures the right to privacy and concluded that the Belgian Competition Authority could not seize documents containing legal advice rendered by in-house counsel.

This judgment could have important implications at national level and also, potentially, at an EU level, in so far as: (i) it expressly rejects the applicability of the "Akzo" ruling to national antitrust proceedings; and (ii) it roots the confidentiality of in-house counsel's legal advice in the right to privacy protected by Article 8 of the European Convention of Human Rights.

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