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

February 2008

Journal of the Japanese Institute of International Business Law, Vol.36, No.2
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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