Is in-house legal advice protected by the rules of privilege?
The EC privilege rules were originally established by the ECJ in the AM&S case in which the court established that privilege only attached to written communications between lawyers and clients if the following two conditions were met: (i) the communications in question were made for the purposes and in the interests of the client’s rights of defence; and (ii) the communications emanate from independent lawyers, that is, those not bound to the client by a relationship of employment. In practice, this means that advice provided by in-house lawyers is not privileged under EC law. The CFI has recently applied and clarified the AM&S position in its Akzo Nobel judgment which is now itself on appeal to the ECJ. In particular, the CFI clarified that when claiming legal privilege over a document the company cannot be compelled to allow the Commission investigators a ‘cursory glance’ to verify the claim during the inspection. A company can insist that any disputes over legal privilege must be re
