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Going round the houses

Now in-house legal privilege has been removed, what should practitioners do to avoid breaking the new rules? Gavin Foggo and Deepak Arora report

19 October 2010

The European Union Court of Justice (ECJ) ruling in Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd v Commission (Case C-550/07P) has caused much dismay among in-house counsel.

The judgment confirms that written communications between in-house counsel and their non-lawyer colleagues will not be protected by legal professional privilege for competition investigations by the EU Commission. This is in contrast to the position of external lawyers, whose communications with their clients continue to attract legal professional privilege.

While the ECJ considered it was doing no more than following the decision in AM & S Europe v Commission [1982] ECR 1575, its decision is disappointing largely because the court has missed an opportunity to adapt the law to reflect the substantial changes that have taken place in the roles and commercial importance of many in-house counsel since the AM & S ruling nearly 30 years ago. The recent ruling also removes ...

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