Seeking a privileged position

Confirming as it did that legal professional privilege at EU law does not attach to communications between companies and their in-house lawyers, the court displayed the same reluctance as in many civil law jurisdictions to fully recognise that in-house legal counsel are lawyers like any other.

The 30th anniversary next month of the European Company Lawyers Association is a good opportunity to mark the fact that, despite the Akzo judgment, the campaign to secure full professional status for in-house lawyers within the EU continues.

ECLA has been at the forefront of that campaign for many years. Indeed, it intervened into the Akzo appeal to put the case for privilege. An umbrella organisation for 19 national company lawyer associations throughout the EU, including the Law Society, it remains at the forefront of the continuing campaign.

Because they are embedded within the organisations which they serve, in-house lawyers are well-placed to give legal advice that will be followed. Legal advice is more likely to be followed if it is given fully, frankly and in complete confidence. So the role of in-house lawyers within companies promotes compliance – and this is something that should be fully recognised and encouraged. Companies should be entitled to seek advice from their in-house counsel which is protected by legal professional privilege.

Even within common law jurisdictions such as ours, where the professional status of in-house solicitors has long been fully recognised, the issue has a practical impact. Take competition law. UK companies are subject to EU as well as UK competition law and they have to comply with both. On matters of UK competition law, they can take privileged advice from their in-house competition solicitors. But because EU law does not recognise that privilege, they cannot do so on matters of EU competition law. It is anomalous.

This is why the Law Society is supporting ECLA’s campaign. In 2010, we supported and assisted their intervention into the Akzo Nobel case at ECJ, and we subsequently joined ECLA as the representative association for company lawyers in England and Wales.

It is perhaps unlikely that the ECJ itself will want to re-examine the issue for some time. So the campaign is now continuing in other directions. Not all civil law jurisdictions fail to recognise in-house practice. Portugal is a case in point. But in those jurisdictions which have not fully recognised the professional status of in-house lawyers, national associations are chipping away at local restrictions.

The ruling in April of the Brussels Court of Appeal in the recent Belgacom case, which followed the intervention in that case of the ECLA member for Belgium, represented a significant advance for Belgian company lawyers and their employers. That came on top of a similar advance in March for Dutch company lawyers in the Dutch Supreme Court. Both jurisdictions now recognise that the communications between companies and their in-house counsel are and should be privileged.

And the more the professional status of in-house lawyers is recognised at national level within Europe, the less tenable it will become for that status not to be recognised by the institutions of the EU. To help this along, ECLA is undertaking a detailed comparative study of the position of company lawyers throughout the EU, illustrating in particular the high ethical standards they adhere to throughout Europe.

The campaign is continuing and its strength is growing.

The European Company Lawyers Association is holding its 30th Anniversary Forum at the Palais d’Egmont in Brussels on Thursday 26 September. An open invitation to attend has been extended to all company lawyers. It is a free event. To find out more about it and to register, please go to www.ecla.org.

Anthony Brooks is head of legal services to the Law Society and its representative at the European Company Lawyers Association