Originally published as Covington E-Alert on September 15, 2010

On 14 September 2010, the Court of Justice, the highest court in the European Union (“EU”), ruled that, in the context of EU competition law investigations, legal professional privilege (“LPP”) does not cover communications between in-house lawyers and other employees at a company, even where the lawyer is a member of a bar in an EU Member State.1 The Court therefore confirmed its 1982 ruling in the AM&S case.

The long-anticipated judgment resulted from an appeal lodged by Akzo Nobel against the judgment of the Court of First Instance (now called the General Court) of 17 September 2007,2 in which the General Court had held that, in the context of EU competition law investigations, LPP covers only communications between a client and outside counsel admitted to a bar. Supported by several lawyers associations and three Member States, Akzo Nobel argued that LPP should also cover communications with an in-house lawyer who is a member of bar. The Court of Justice flatly rejected the appeal based essentially on the same reasoning as that of Advocate General Kokott in her Opinion of 29 April 2010.

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