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Revealed: Akzo Nobel threat to global firms

Privilege following Akzo Nobel Akzo Nobel doesn't really change the status of advice given by either in-house lawyers or non-EEA counsel. It has been clear since the AM&S judgment in 1982 that neither will be privileged as against the European Commission. It doesn't matter what professional title an in-house lawyer has (eg. solicitor/legal adviser/Rechtsanwalt/Jurist), or whether his or her advice is privileged for the purposes of national law - it will not be privileged in Commission investigations. Privilege attaches only to advice from external counsel admitted in the EEA. Disappointingly, in the light of the increasing importance and status of the in-house legal function in the 25 years since AM&S, Akzo Nobel failed to overturn this principle. What the judgment did deliver, however, was clarification that internal work done for the purposes of instructing external counsel may be privileged, and that Commission investigators are not allowed to read through advice for which privilege is claimed, in order to decide whether the claim is justified. If a business wants to keep advice away from the Commission, there is, as there has been since 1982, only one option: to obtain it from external counsel admitted in the EEA.

19-Feb-2008

11:46 am