EU Court Defines Scope of Legal Privilege in Antitrust Probes: In-House Counsel Documents Not Protected

The European Court of First Instance (CFI) has handed down its much awaited ruling in the Akzo case, which is of particular importance for in-house lawyers and antitrust practitioners as it clarifies the scope of legal professional privilege in the context of a Commission antitrust investigation. The judgment confirms the Commission’s view that documents created by in-house counsel, whether or not they are members of a bar, are in principle not subject to legal privilege and can be viewed and read by Commission officials in an investigation under EC law. The CFI’s judgment also provides a valuable clarification of the procedure which the Commission must follow when dealing with documents found during an investigation and for which privilege is claimed but disputed by the Commission.

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