Narrow Scope of EU Privilege Rules Under Spotlight Again

May 3, 2010

On 29 April 2010, Advocate General Juliane Kokott (who acts as an adviser to the European Court of Justice) delivered her Opinion in the case Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd v. European Commission.  This case relates to European Union rules on legal professional privilege in antitrust cases heard before the European Commission.  The precise scope of these rules has been hotly disputed since the ECJ’s ruling in AM&S v. Commission in 1982.

The Advocate General’s Opinion is an intermediate stage in the European Court of Justice procedure, and it is not binding on the Court, although the views of the Advocate General are usually considered to be highly persuasive.  Judgment will follow at a later date.

In essence, the Opinion recommends that the Court uphold existing case law that, in European Union proceedings, legal professional privilege covers only advice provided to a client by:

(i)  external lawyers,

(ii)  who are also members of a Bar association in a European Union Member State.   

If the Court follows the advice of the Attorney General, communications from in-house counsel and counsel not admitted to any European Bar association will continue to be denied privilege in European Union antitrust investigations.  Expert reports from non-legal professionals such as economists and accountants also will not benefit from privilege, unless they were commissioned by external, European Union-qualified lawyers. 

In practical terms, the issue of privileged advice is most likely to arise in connection with the seizing of documents during antitrust "dawn raids" by the European Commission.  However, there is nothing in theory to stop the European Commission from requiring the production of documents in other circumstances under its general powers of investigation. 

By contrast, national rules on legal professional privilege continue to govern investigations brought under national law.  In some instances, the same limitations on privilege do not apply at national level.

Finally, the Advocate General took the view that any harmonisation of privilege rules is a question for the European Union legislature alone, rather than for the Court.  This is particularly interesting in view of the fact that members of the European Parliament recently tabled proposals extending legal professional privilege to in-house lawyers, which ultimately were not adopted by the legislature.  

 Gibson, Dunn & Crutcher LLP

Gibson, Dunn & Crutcher lawyers are available to assist in addressing any questions you may have regarding these issues.  Please contact the Gibson Dunn attorney with whom you work, any member of the firm’s Antitrust and Trade Regulation Practice Group, or any of the following:

Peter Alexiadis (+32 2 554 72 00, [email protected])
Andrés Font Galarza (+32 2 554 72 30, [email protected])
David Wood (+32 2 554 7210, [email protected])

James Ashe-Taylor (+44 20 7071 4221, [email protected])
Philip Rocher (+44 20 7071 4202, [email protected])
Charles Falconer (+44 20 7071 4270, [email protected])  

Michael Walther (+49 89 189 33-180, [email protected])  

New York
Peter Sullivan (212-351-5370, [email protected]

Los Angeles
Daniel G. Swanson (213-229-7430, [email protected])

San Francisco
Gary R. Spratling (415-393-8222, [email protected])

© 2010 Gibson, Dunn & Crutcher LLP

Attorney Advertising:  The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.