In 2010 the European Court of Justice (ECJ) rendered a major decision that has since been the subject of extensive discussions (Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd v. European Commission). In 2003, the European Commission (EC) raided the offices of Akzo Nobel and one of its subsidiaries, Akcros, following suspicions of breach of European competition laws. The EC seized a significant quantity of materials, including communications exchanged between one of the company’s in-house counsel (a Dutch attorney practicing in the Netherlands, where the offices were located) and his business clients.
Akzo Nobel quickly claimed that the communications were privileged and brought the case before the ECJ, which reaffirmed the long-standing European position that in-house counsel communications are not protected under legal privilege. According to the ECJ, the grounds for maintaining this position mainly focus on the fact that any in-house counsel employed by an organization lacks the necessary independence to benefit from legal privilege.
The court’s findings, once again, did not leave much room for interpretation; the arguments were generic and undoubtedly chosen to affirm a standard rule. Consequently, some started to wonder whether communications exchanged between U.S. in-house lawyers and their European business people could be challenged before North American courts when subject to the European Commission’s investigations. This question was based on the assumption that since the EC could easily request access to the communications, the “reasonable expectations of privacy” element of legal privilege could now be missing. Though this concern seems a bit excessive, given the U.S. courts’ interpretation of the client’s—and not the lawyer’s—reasonable expectation of privacy, it reveals the degree of uncertainty to which U.S. and Canadian corporate counsel are currently exposed. This uncertainty is not surprising given the longstanding importance of legal privilege in a North American legal culture and jurisprudence.
However, one should bear in mind that even though the Akzo and the Prezes Urzędu Komunikacji Elektronicznej decisions seem to reach far beyond European competition law, they relate to European Union law only. National laws of each of the EU member states trump EU law when the matter falls under their jurisdiction.