The Difficult Relationship Between Restraints to the Attorney-Client Privilege and Compliance with the Law by Companies – Commentary on the Judgment of the Court of Justice of the European Union in the Akzo Nobel Chemicals and others vs. Commission case of 14th September, 2010 (case C-550/07)

In his ruling of 14th September, 2010, in the Akzo Nobel Chemicals and others vs. Commission case, the Court of Justice of the European Union confirms that communications between a company and an in-house counsel are not covered by the confidentiality of communications between clients and lawyers (as he also stated 28 years ago in the AM & Europe vs. Commission case). In this case the problem is about conflicts generated over the access to certain documents by the European Commission, as part of an investigation in the area of competition law. The ECJ clarifies once again the scope and the limits of confidentiality of communications with lawyers, concluding that it may be only exercised with outside counsels. The problems caused by these issues have their origin in the absence of a rule that expressly regulates the protection of the documents or information prepared by a lawyer, in the context of defending the interests of the client. This legal professional privilege is recognised as a fundamental right and the present article aims to clarify the scope of that privilege, based on the last judgment of the ECJ related to this topic. Reprinted by permission of Hart Publishing