In-House lawyers seem set to lose battle for professional privilege (EUCJ)

29 April 2010, Luxembourg. Advocate General Kokott delivered his opinion in case C-550/07P, on 'legal professional privilege' and whether communications with an in-house lawyers are privileged under EU law, to the extent that a competition authority carrying out a search cannot make use of such communications (in this case emails between the general manager of a company and the in-house lawyers). Advocate General Kokott is proposing in favour of the EU Commission, that such communications are not covered by such privilege.

Advocate General Kokott is effectively proposing that the European Union Court of Justice (EUCJ) retains the position taken in AM & S v. Commission (Case 155/79). The Court had ruled that lawyer-client communications are confidential and cannot be demanded by the European Commission during the course of an investigation, when the lawyer is an external lawyer i.e. a lawyer not bound to his client by a contract of employment.

In AM & S the Court had upheld the right of defence from independent lawyers. In the present case it is being argued, amongst other things, that in-house lawyers follow 'work-related' instructions from their employers, are 'structurally, hierchically and functionally' dependent on their employers (para. 62) and more economically dependent on their employers than external lawyers.

Other pleas, including a claim for equal treatment and non-discrimination between in-house lawyers and external ones, are also being dismissed by Advocate General Kokott.

To read Advocate General Kokott's Opinion click HERE