The European Court of Justice (the "ECJ") has confirmed a lower court ruling dating from 2007 and a preliminary opinion earlier this year by ECJ Advocate General Juliane Kokott, both of which rejected the case for extending legal privilege in competition investigations to communications involving in-house Counsel.

The Court rejected arguments made by chemical firm Akzo Nobel NV that the European Court of First Instance (now termed "The General Court") was wrong to find that communications involving in-house legal counsel were not covered by lawyer-client confidentiality.

Akzo Nobel, along with its subsidiary Akcros Chemicals Ltd, challenged in 2003 the right of the European Commission to have access to communications, memos and notes of its in-house legal counsel after a raid of Akzo's offices in Manchester, United Kingdom. The central issue was whether the Commission could copy five documents which the company claimed were legally privileged.

The position taken by the ECJ contrasts with the domestic laws of some Member States, such as the United Kingdom, where internal correspondence with in-house counsel is normally protected if that lawyer is a member of a Bar or a Professional Association. Akzo was supported in its arguments by a number of legal institutions and interest groups such as the International Bar Association and The Law Society of England and Wales.

As a consequence of this decision, US businesses need to carefully consider how to create internal documents on EU competition matters to ensure they are privileged and this should involve consideration of instructing an external lawyer qualified to practise in the EU. Companies should also ensure that dawn-raid preparedness is an integral part of their EU competition law compliance programmes.

For more details on the Akzo case see Fulbright Briefing: No Privilege for Corporate Counsel in EU Competition Investigations.

This article was prepared by Rod Lambert (rlambert@fulbright.com or +44 0 20 7832 3606), Layne E. Kruse (lkruse@fulbright.com or +1 713 651 5194) and Ian M. Pegram (ipegram@fulbright.com or +44 0 20 7832 3645) from Fulbright's Antitrust and Competition Practice Group.