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conditions for the protection of written communications between lawyers
and their clients
6
. The conditions set forth in the decision are as follows:
•
The communications should be made for the purposes of and in the
interests of the client’s rights of defence and
•
The communications should emanate from independent lawyers
who are not bound to the client by a relationship of employment.
Finally, the General Court dismissed the action as unfounded on 17
September 2007
7
by stating that the second condition was not fulfilled.
Parties’ Appeal and Court’s Findings
Akzo and Akcros filed an appeal on 30 November 2007 before the
Court against the decision of the General Court principally on the following
grounds:
Principles of Independence and Equal Treatment
Akzo and Akcros submitted that the General Court gave a “literal
and partial interpretation” of the second condition mentioned above by
excluding in-house lawyers and emphasized that an in-house lawyer
enrolled at a Bar or Law Society is, simply on account of his or her
obligations of professional conduct and discipline, just as independent as
an external lawyer. Akzo and Akcros also alleged that the General Court
violated the principle of equal treatment by that interpretation.
The Court, on those points, held that the in-house lawyer, despite his
or her enrolment with a Bar or Law Society or any additional professional
ethical obligations, does not enjoy a level of professional independence
comparable to that of an external lawyer by reason of the lawyer’s economic
dependence upon and close ties with the employer. In addition, the Court,
by referring to the settled case-law on the principle of equal treatment
8
,
6 To consult the decision, see the following link:
http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!CELEXnumdoc&numdoc=61979J0155&lg=en.
7 To consult the decision, see the following link
:http://eur-lex.europa.eu/LexUriServ/LexUri- Serv.do?uri=CELEX:62003A0125:EN:HTML
8 In accordance with the settled case-law, the principle of equal treatment requires that compa-
rable situations must not be treated differently and that different situations must not be treated
in the same way unless such treatment is objectively justified. See Case C-344/04 IATA and
ELFAA [2006] ECR I-403 § 95; Case C-303/05 Advocaten voor de Wereld [2007] ECR I-3633,
§ 56 and Case C-127/07 Arcelor Atlantique et Lorraine and Others [2008] ECR I-9895, § 23.