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Published online by Cambridge University Press: 09 April 2013
Following on from its judgment in Akzo Nobel,1 the Court of Justice of the European Union (CJEU) on 6 September 2012 delivered its judgment in Prezes.2Prezes expanded the decision in Akzo Nobel, which held that communications between a client and its in-house legal counsel were not protected by legal privilege because the latter are not considered sufficiently independent from the former. Taking this holding one step further, the CJEU in Prezes held not only that corporations are unable to benefit from legal privilege regarding communications with their in-house counsel, but also that any lawyer in an employment relationship with its client is disqualified from representing their client before the CJEU. This article criticizes this holding and argues that the CJEU's interpretation of independence does two things: (1) unreasonably expands the scope of Akzo Nobel to include the representation of in-house counsel in all cases; and (2) does so in a way which is inconsistent in light of similar concerns of the independence of government lawyers, who seemingly maintain their right of privilege under the judgment.
1 Case C-550/07 Akzo Nobel Ltd and Akcros Chemicals Ltd v European Commission [2010] ECR I-8301.
2 Joined Cases C-422/11 P and C-423/11 P Prezes Urzędu Komunikacji Elektronicznej and Republic of Poland v Commission [2012] ECR [as yet unpublished].
3 Case 155/79 AM & S Europe v Commission [1982] ECR 1575, paras 25–26. In para 21 of this case, the Court held that the confidentiality of communications between lawyers and their clients should be protected at the European level, subject to two conditions: (1) the communications must relate to the client's right of defence, and (2) they must come from an independent lawyer, ie, ‘lawyers who are not bound to the client by a relationship of employment.’
4 ibid, paras 40–51.
5 Akzo Nobel (n 1) paras 44–45.
6 See eg Alexander, R, ‘Does the Akzo Nobel Case Spell the End of Legal Professional Privilege for In-House Lawyers in Europe?’ (2010) 310 Company Lawyer 4Google Scholar; S Bryska, ‘In-House Lawyers of NRAs May Not Represent their Clients before the European Court of Justice: A Case Note on UKE’ College of Europe Research Paper in Law 03/2011.
7 Case T-226/10 Prezes Urzędu Komunikacji Elektronicznej v Commission [2011] ECR [as yet unpublished].
8 The origin of the case is an order of the General Court in which it dismissed as inadmissible an action to annul a Commission Decision adopted under Article 7(4) of Directive 2002/21/EC on a common regulatory framework for electronic communications networks and services (Framework Directive). See para 1 of Prezes.
9 In addition to the two arguments which will be described in this article, the appellant argued that the General Court: breached the principles of conferred powers and subsidiarity (paras 38–45); breached the principle of proportionality (paras 42–45); and failed to state adequate reasons for its order (paras 46–51).
10 Prezes (n 2) para 35.
11 ibid, para 12.
12 ibid, para 23.
13 ibid, para 24.
14 ibid, para 25.
15 ibid, para 27.
16 ibid, paras 29–37.
17 ibid, paras 2 and 12.
18 ibid, para 2.
19 ibid, para 34.
20 ibid, para 35.
21 ibid, paras 16, 22 and 34.
22 See eg J Fish for Council of the Bars and Law Societies of the European Union (CCBE), ‘Regulated Legal Professionals and Professional Privilege within the European Union, the European Economic Area and Switzerland, and Certain Other European jurisdictions’ [2004] <http://elixir.bham.ac.uk/Free%20Movement%20of%20Professionals/Links_docs/fish_report_en.pdf> accessed 28 November 2012; European Company Lawyers Association, ‘Legal Privilege for In-House Lawyers’ [2003] <http://www.ecla.org/media/2056/comparative_table.pdf> accessed 28 November 2012; and Crowell & Moring, ‘What Every Corporation Needs To Know About In-House Legal Privilege (or Lack of It) in Europe’ <http://www.crowell.com/NewsEvents/Publications/Articles/1349694> accessed 28 November 2012.
23 CCBE study (n 22) 28.
24 Ibid 18 and 31.
25 ibid 33, 39, 42, 44 and 48.
26 Peter Vaupel v Court of Justice of the European Communities (131/83), 15 March 1984 [unpublished] and Case C-174/96 Orlando Lopes v Court of Justice of the European Communities [1996] ECR I-6401.
27 See Case T-79/99 Euro-Lex European Law Expertise GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) [1999] ECR II-3555.
28 Joined Cases C-74/10 P and C-75/10 P EREF v Commission [2011] OJ C 80, 9.
29 Alfred Crompton Amusement Machines Ltd v Customs & Excise Comrs (No 2) [1972] 2 QB 102, 129 (CA).
30 Thanki, B QC (ed), The Law of Privilege (2nd edn, OUP, Oxford 2011)Google Scholar.
31 Connecticut Mutual Life Insurance Co v Shields, 18 FRD 448 (SDNY 1955) and Rowley v Ferguson, 48 NE2d 243 (Ohio Ct App 1942).
32 US v Anderson, 34 FRD 518, 522–23 (Dist Colo 1963).
33 NLRB v Sears, Roebuck & Co, 421 US 132, 148–149.
34 6 Op Off Legal Counsel 481, 495 (1982). A more recent affirmation of privilege in the government context is In re County of Erie, 473 F3d 413 (2d Cir 2007) in which the court stated: ‘… the government's claim to the protection of the attorney-client privilege is on par with the claim of an individual or a corporate entity’ (418).
35 449 US 383, 386 (1981).
36 Leslie, MB, ‘Government Officials as Attorneys and Clients: Why Privilege the Privileged?’ (2002) 77 IndLJ 469, 481Google Scholar.
37 PM Sparkes, ‘Not Any Ordinary Agent, Not Any Ordinary Attorney: The Government Lawyer and Confidentiality’ (2007) 7 and esp. fn 45, on file with the author of this article. The paper is an expansion of remarks made by Professor Sparkes at the continuing legal education seminar at Frankfort, Kentucky, 4 June 2008. See also Leslie, ibid 473.
38 Jenoff, P, ‘Going Native: Incentive, Identity and the Inherent Ethical Problem of In-House Counsel’ (2012) 112 West Virginia Law Review 20–1Google Scholar; Le Mire, S, ‘Testing Times: In-House Counsel and Independence’ (2011) 14 Legal Ethics 23CrossRefGoogle Scholar; Hemingway, AP, ‘The Government Attorney's Conflicting Obligations’, Selected Works, Widener University School of Law (Jan 2000) 227, 229Google Scholar.
39 Jenoff (n 38) 22.
41 Hutchinson, AC, ‘ “In the Public Interest”: The Responsibilities and Rights of Government Lawyers’ (2009) 10 German Law Journal 629, 981–1000CrossRefGoogle Scholar.
42 The Torture Memos are a widely recognized example of ‘going native’ because of the lack of independence on the part of the government lawyers who drafted them: ‘Given that the memos were prepared by agencies … that traditionally employ some of the best lawyers in government, it is unlikely that the authors lacked technical legal skills. The explanation for the deficiencies in reasoning is more likely that the authors did not want to regard the law as constraining their client's end, so they approached the law in an excessively adversarial stance, in effect adopting the attitude that they would make the law into what they wanted it to say.’ (Wendel, WB, ‘Professionalism as Interpretation’ in Rapoport, NB, Van Niel, JD and Dharan, BG (eds), Enron and Other Corporate Fiascos: The Corporate Scandal Reader (2nd edn, Thomson Reuters 2009) 1038–54)Google Scholar.
43 Sparkes (n 37) 6.
44 Council of Bars and Law Societies of Europe, ‘Charter of Core Principles of the European Legal Profession and Code of Conduct for European Lawyers’ (2010 edn) 7 (emphasis added).