Communications by in-house counsel who are regulated by bar association rules or other regulations, should not be protected by Legal Professional Privilege according to the Advocate General.
The ICJ will give its decision later this year. In that decision the ECJ must also take into account aspects of human rights such as the freedom to choose legal counsel, because the EU is after the Lisbon Treaty, party to the European Convention of Human Rights.

The opinion of the Advocate General in the case C-550/07 P can be found at www.curia.eu.

AKZO Nobel was supported in this case against the Commission by interventions by The Republic of Ireland, The Kingdom of Great Britain and Northern Ireland, The Kingdom of the Netherlands, The International Bar Association, the Society of Bars and Law Societies of Europe, the Nederlandse Orde Van Advocaten and the American Corporate Counsel Association. There were no interventions supporting the position of the Commission.

ECLA’s president Han Kooy said “We will comment as soon as the ECJ has given its decision later this year”.
 

ECLA members can express interest by contacting the Secretary of the Task Force Paul de Jonge at

Members:

Jean Cattaruzza – Belgium

Philippe Marchandise - Belgium

Han Kooy – The Netherlands

Paul de Jonge - The Netherlands

 

Dear ECLA members,

On February 9, the European Court of Justice held hearings in the  AKZO Nobel vs  The European Commission Legal Professional Privilege appeal case. Paul de Jonge and I  attended; ECLA members from Belgium, Germany, the United Kingdom and The Netherlands were also present. This is the first time since the AM&S case of 1982 that the European Court of Justice  must rule  ( in appeal) on this topic which is of great importance to company lawyers. In 2007 the Court of First instance denied in principle legal privilege for company lawyers ( even, as in the case at hand, to company lawyers who are at the same time a member of the Bar or who are similarly regulated by government).

 

ECLA is the first intervenor in this case. Other interventions were made by attorneys for the International Bar Association, The Council of Bars & Law Societies of Europe, the American Corporate Counsel Association and the Netherlands Bar (Nederlandse Orde van Advocaten). Three countries intervened in favour of AKZO: Ireland, The United Kingdom and The Netherlands. There were no intervenors supporting the Commission. The court was in full composition with 13 judges and one attorney general. Public interest was demonstrated by the approximately 100 attendants in the court room.

 

ECLA’s lawyers Kristina Nordlander (Sidley & Austin), John Temple Lang and Maurits Dolmans of our sponsor Cleary Gottlieb Steen & Hamilton, coordinated the pleadings of the various intervenors to avoid duplications and overlaps. Dr. Temple Lang, who also pleaded in the AM&S case in 1982, addressed i.a. the new situation under the Lisbon Treaty where it is now clearly spelled out that what is being regulated by national governments, should not be addressed by the EU, unless there is an agreed need to do so. The representative of Ireland addressed in particular the Human Rights issues. If these will  not be properly addressed by the Court, and the Commission prevails, an appeal can still be made to the Court for Human Rights in Strasbourg.

 

The Commission held that this was a case about investigative powers of the Commission  in competition law matters and that these powers should not be eroded.

 

On April 29, the Attorney General of the ECJ will render her advice to the court.  Thereafter the court will take some months to give its decision.

 

We are grateful to Cleary Gottlieb Steen & Hamilton and Sidley & Austin for all the excellent work they undertook to make the best possible representation for ECLA.

 

Advocate General European Court of Justice supports the General Court’s decision in the AKZO Nobel Legal Privilege case.
On April 29, 2010, the Advocate General of the European Court of Justice (“ECJ”) has issued her non-binding opinion in which she recommends to uphold the 17 September 2007 decision of the General Court. This means that she also supports the 1982 decision of the ECJ in AM&S in which in-house counsel were denied legal privilege.