CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ LEGAL PROFESSIONAL PRIVILEGE IN INTERNATIONAL, EUROPEAN AND CZECH LAW We may thus conclude that even though the scope of LPP is manifestly narrower under the CJ EU case-law, it is well-equipped to provide sufficient protection for the purposes of competition law enforcement, as it was intended to. 3. Lawyers covered by the privilege The CJ EU was very clear in the AM& S case that only “independent” lawyers may benefit from the privilege; it also explained that the independence is composed of two elements, one positive, i. e. the professional ethics and discipline which govern the lawyers’ profession, 29 one negative, i. e. the absence of any employment relationship between the lawyer and the client. 30 As the CJ EU explained in its later Akzo Nobel judgement, communication with in- house lawyers cannot be covered by the privilege, whatever their actual status: “an in-house lawyer cannot, whatever guarantees he has in the exercise of his profession, be treated in the same way as an external lawyer, because he occupies the position of an employee which, by its very nature, does not allow him to ignore the commercial strategies pursued by his employer, and thereby affects his ability to exercise professional independence. […] It follows, both from the in-house lawyer’s economic dependence and the close ties with his employer, that he does not enjoy a level of professional independence comparable to that of an external lawyer”. 31 This conclusion collided with the opinion of Advocate General Slynn 32 and was heavily criticised 33 for being contrary to the practice in leading jurisdictions, including the United States, 34 and even some EUMember States, in particular the United Kingdom. 35 Nonetheless, even though the General Court seemed to be willing to include the in-house lawyers into the privilege, the Court of Justice refused to do so in the abovementioned Akzo Nobel case and concluded that: “an in-house lawyer cannot, whatever guarantees he has in the exercise of his profession, be treated in the same way as an external lawyer, because he occupies the position of an employee which, by its very nature, does not allow him to ignore the commercial 29 CJ EU judgement 155/79 AM & S (sub 15), par. 24. 30 CJ EU judgement 155/79 AM & S (sub 15), par. 21. 31 CJ EU judgement of 14 September 2010 C-550/07 P Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd v European Commission , ECLI:EU:C:2010:512, par. 47 and 49. 32 Opinion of AG Slynn in case 155/79 AM & S , ECLI:EU:C:1982:17, p. 1611. 33 See eg. ANDREANGELI, A. The Protection of Legal Professional Privilege in EU Law and the Impact of of the Rules on Exchange of Information within the European Competition Network on the Secrecy of Communications between Lawyer and Client: One Step Forward, Two Steps Back? Competition Law Review, 2005 (1), p. 31; FAULL, J. In-House Lawyers and Legal Professional Privilege: a Problem Revisited. Columbia Journal of European Law , 1998 (1), p. 139; HILL, A. A Problem of Privilege: In-House Counsel and the Attorney-Client Privilege in the United States and the European Community. Case Western Reserve Journal of International Law , 1995 (1), p. 145. 34 ANDREANGELI, A. EU Competition Enforcement and Human Rights . Edward Elgar Publishing, 2008, p. 104. 35 NAZZINI, R. (sub 7), p. 187.

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