## Facts

- The European Commission conducted an unannounced competition inspection of Akzo Nobel Chemicals Ltd. and Akcros Chemicals Ltd. in the United Kingdom in February 2003, assisted by the UK Office of Fair Trading.
- During the inspection, officials copied documents including emails between an Akcros employee and Akzo’s in-house lawyer, and internal notes claimed to have been prepared to obtain legal advice.
- Akzo asserted legal professional privilege (LPP) over the seized material, arguing that the in-house lawyer was admitted to the Dutch Bar and therefore should be treated as an independent lawyer for privilege purposes.
- The Commission issued an inspection decision authorizing the raid and later adopted a separate decision rejecting privilege for certain documents and placing them on the administrative file.
- Akzo filed two actions before the General Court: one challenging the inspection decision and one challenging the decision rejecting LPP.
- The General Court held the challenge to the inspection decision inadmissible, held the challenge to the refusal of LPP admissible, and upheld the Commission’s refusal of privilege for the in-house-lawyer emails and most disputed internal documents.
- Akzo appealed; the Court of Justice (Grand Chamber) dismissed the appeal.

## Issues

1. Whether an inspection decision authorizing a dawn raid produces reviewable legal effects permitting an annulment action.
2. Whether a decision rejecting LPP and placing disputed documents on the administrative file produces reviewable legal effects.
3. Whether EU LPP in Commission competition investigations covers communications with in-house counsel who is a member of a Member State bar.
4. Whether EU LPP covers internal preparatory documents allegedly created to obtain legal advice, absent a sufficiently close link to communications with independent external counsel.
5. Whether excluding in-house counsel from EU LPP violates equal treatment or rights of defence under EU fundamental-rights guarantees.

## Decision

- The General Court held the action challenging the inspection decision inadmissible because its effects were exhausted once the inspection occurred and it did not distinctly alter the undertaking’s legal position.
- The General Court held the action challenging the LPP refusal admissible because the refusal had continuing effects by allowing the Commission to use the documents as evidence.
- On the merits, the General Court upheld the Commission’s position that LPP protects only (i) communications made for the purposes and in the interests of the undertaking’s rights of defence and (ii) emanating from independent external lawyers; it excludes in-house lawyers.
- The Court of Justice affirmed, holding that EU LPP does not extend to communications with in-house counsel, even if admitted to a bar, and that the exclusion does not violate equal treatment or rights of defence.
- The Court of Justice maintained that internal documents are privileged only when sufficiently connected to privileged correspondence with independent external counsel; the challenged internal materials did not satisfy that standard.

## Legal Principles

- In EU competition investigations, LPP attaches only to communications (i) made for the purposes and in the interests of the client’s rights of defence and (ii) originating from an independent lawyer who is not bound to the client by an employment relationship.
- An in-house lawyer’s employment relationship creates economic and organizational dependence incompatible with the independence required for EU LPP, even where the lawyer is subject to professional ethics and enrolled with a Member State bar.
- Member State divergences on in-house privilege do not control EU LPP; the EU standard remains autonomous in Commission enforcement proceedings.
- Differential treatment of external and in-house lawyers for privilege purposes is justified because the categories are not comparable given the objective difference of employment-based dependence.
- Rights of defence apply during the investigative stage, but EU law does not require extending privilege to in-house counsel; confidentiality protections through independent external counsel and other procedural guarantees are sufficient.
- A Commission decision refusing privilege and placing documents on the file produces reviewable legal effects; an inspection authorization decision generally does not, once executed, absent a distinct and continuing alteration of legal position.
- Internal preparatory documents may be privileged only when closely linked to privileged communications with independent external counsel; materials prepared for or exchanged with in-house counsel, or lacking a close link, are not protected.

## Conclusion

The Court of Justice confirmed that EU legal professional privilege in Commission competition inspections is limited to rights-of-defence communications with independent external lawyers and does not protect communications with in-house counsel, including bar-admitted employees, while also distinguishing between nonreviewable inspection authorizations and reviewable privilege-refusal decisions.


Akzo Nobel Chems. Ltd. v. Comm’n, Case C-550/07 P, ECLI:EU:C:2010:512 (C.J. 2010)