Profession of company lawyers in Europe

Legal Professional Privilege

The Legal Professional Privilege was from the beginning of ECLA the core issue which developed into more broad discussions about the profession of company lawyers in Europe, attributes of this profession and best practices for company lawyers in Europe. But the Legal Professional Privilege or better and more general the freedom of choice of qualified counsel for CEOs of all European industries remains still an important part of ECLA´s view.
What do we have in minds when we mention the Legal Professional Privilege? What does ECLA want to ensure and protect?

The answers to these questions are not trivial as the European company lawyers work in very different jurisdictions, despite of the fact there is currently a common roof of the European Union for the big majority of ECLA´s members. The concept of LPP is well known in common law countries where it protects all communications between a professional legal adviser (a solicitor, barrister or attorney) and his/her her clients from being disclosed without the permission of the client. The privilege is that of the client and not that of the lawyer. The purpose behind this legal principle is to protect an individual's ability to access the justice system by encouraging complete disclosure to legal advisers without the fear that any disclosure of those communications may prejudice the client in the future.

On the continent it is similar to the duty (and right in some jurisdictions) of the fully qualified attorney or advocate to keep confidential everything he/she learned from the client in relation to providing of legal advice (legal service).

Since the AM&S case (Australian Mining and Smelting Europe Ltd. v. Commission, 155/79, Rec. 1982, p.1575), in which judgment was given on 18 May 1982, the European Court of Justice did not recognise legal privilege for the advice of company lawyers. Since 1982, the European Commission has, on several occasions, used comapny lawyers' notes against the client the lawyer was advising in EU competition cases.

ECLA always explained that this decision could hinder European business and tried to concentrate knowledge and efforts supporting full rights of clients of company lawyers - including the right to Legal Professional Privilege to the legal advice provided by company lawyers.

Below you can find documents important for understanding of ECLA´s efforts and also documents of another important case ECLA was directly involved in (case C-550/07 P - Akzo Nobel Chemicals and Akcros Chemicals v Commission) in the period of 2008 - 2010.

ECLA congratulates its members in Belgium and the Netherlands, who worked hard to adjust their legal system in the way coherent with the opinion of the European Court of Justice expressed in the AM&S case, for the recent local recognition of the Legal Professional Privilege for qualified in-house lawyers in their respective countries. See the News.

Documents:

In-house lawyers - issues of ethics and independance (1997)

Legal privilege versus secret professional (1997)

Position paper - Legal privilege for in-house lawyers (1997)

Position paper - updated - Commission´s propsal (2000)

The case for in-house legal privilege in EC law (2001)

Legal privilege before national competition authorities (2001)

Human rights implication of privilege denial (2002)

The situation of in-house counsel in member states - comparative tables (2003)

Position paper as featured in Global Counsel - Modernisation of Competition Law (August 2003)

The position of AFJE (French association) on Legal Confidentiality (2003)

European Parliament Vote on the Merger Regulation & Legal Privilege (2003)

Statement of the United States Council for international business, Protecting the confidentiality of communications between a corporation and a lawyer employed by the corporation, May 24,2005

International Chamber of Commerce position paper : competition law and legal privilege June 16 2006

In-House Counsel and the Attorney-Client Privilege - A Lex Mundi Multi-Jurisdictional Survey
 

AKZO Nobel Case Documents:

Interim order given in Akzo Nobel case

L'arrêt AKZO: le Tribunal de Première Instance refuse d'étendre aux juristes d'entreprise la protection du secret professionnel

The Court of First Instance clarifies the extent of legal professional privilege in European Commission competition cases

ECLA Intervention Statement in the AKZO Nobel Case (February 2008)

ECLA' s after ECJ Ruling Press Release (September 2010)

 

 

 

 

 

 

 


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