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COMP ET I T I ON LAW

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also stated that in-house lawyers can be treated differently in the applica-

tion of attorney-client privilege because they are not in situations compa-

rable to those of independent lawyers.

Evolution of National Legal Systems and European Union Law

Akzo and Akcros submitted that the General Court should have

“reinterpreted” the aforementioned second condition set forth in the

AM &

S Europe v. Commission

decision by taking into account the evolution of

national laws towards an assimilation of in-house lawyers and lawyers in

private practice. Akzo and Akcros also submitted that the General Court

disregarded the relevance of the development of European Union law,

particularly the entry into force of the Council Regulation (EC) No 1/2003

of 16 December 2002 (hereinafter referred to as the “Regulation”) which

increased the need for in-house legal advice.

On those points, the Court considered on the basis of the comparative

examination conducted by the General Court in legal systems of Member

States of the European Union that the legal situation in the Member States

has not evolved since the judgment in

AM & S Europe v. Commission

an extent which would justify a change in the case-law and recognition for

in-house lawyers of the protection of attorney-client privilege. As for the

Regulation, the Court stated that the Regulation does not aim to require

in-house and external lawyers to be treated in the same way as far as the

attorney-client privilege is concerned, but aims to reinforce the extent

of the Commission’s powers of inspection, in particular with regard to

documents which may be the subject of such measures

Court’s Judgement

The Court finally disagreed with all the arguments submitted by Akzo

and Akcros and decided that communications between in-house lawyers

and other employees of the same business should remain outside the scope

of attorney-client privilege under European Union law on the one hand,

and ruled, on the other hand, that the application of this privilege at the

European Union level requires independence, which means the absence of

any employment relationship between the lawyer and the client.

9 The Court referred to Recitals 25 and 26 in the Preamble to the Regulation regarding the de-

tection of infringement of competition rules. To consult the Regulation, see the following link:

:l:2003:001:0001:0025:en:PDF