In-House Lawyers and Legal Professional Privilege: A Problem Revisited

4 Colum. J. Eur. L. 139 (1998)

Jonathan Faull. Director, DG IV, European Commission; Professor of Law, Vrije Universiteit Brussel.

With the many challenges facing Community competition policy at the end of the 1990’s, it may seem strange to reconsider the question of legal professional privilege (LPP).’ However, the topic seems to have become controversial again. Perhaps for those who claim to suffer from the situation established by the European Court of Justice in AM&S Europe Ltd. v. Commission, it has never ceased to be controversial. Certainly, lawyers belonging to non-EU bars practicing Community law and some European in-house lawyers have continued to argue that the current position is unfair to them. Recent comments provide an opportunity to revisit the issue. I will concentrate in this paper on the in-house lawyer problem. The question of foreign (non-EU bar/law society) lawyers is a separate matter deserving separate treatment.

It has been said that the Commission has adopted a new policy of targeting in-house lawyers’ offices during surprise inspections pursuant to Article 14(3) of Council Regulation 17/62.4 This follows many years after the AM&S judgment, in which period little has happened by way of administrative or case law developments. During this period, the only important case in the Community courts in which the issue was raised was Hilti AG v. Commission.6 In Hilti, the Court of First Instance held that LPP extended to an undertaking’s internal memoranda reporting the content of advice received from “independent, and thus external, legal advisers.