In-house lawyers in Europe should not have the same right to legal professional privilege as other lawyers, the advocate general in the long-running Akzo Nobel case said this morning.

Giving her opinion on the case, which precedes the final decision of the European Court of Justice (ECJ), advocate general Juliane Kokott decided that, in cartel investigations by the European Commission, legal professional privilege does not apply to communications with in-house lawyers.

Kokott said that a salaried in-house lawyer, regardless of whether they were a member of a bar or Law Society, does not enjoy the same degree of independence from his employer as a lawyer working in an external law firm does from his client.

She said there is a risk that an in-house lawyer will encounter a conflict of interest between his professional obligations and the aims and wishes of his company, on which he is more economically dependent and with which he identifies more strongly than would an external lawyer.

Kokott’s opinion will come as an early warning to a number of bars, law societies and governments, who argued in the case that in-house lawyers should enjoy the same privilege rights as other lawyers.

The advocate general’s opinion is not binding on the ECJ, but tends to be followed more often than not. The ECJ’s final ruling is due later this year.

The ECJ must decide whether to overturn a 2007 decision of the European Court of First Instance, which held that legal professional privilege does not apply to legal advice given by in-house lawyers in EU competition law investigations.

Appealing that decision, Akzo Nobel, a Dutch chemicals company, argued alongside eight intervening parties that any lawyer who is a member of a regulated profession should be deemed independent, and therefore legal professional privilege should attach to their advice.

At a hearing in February, the parties also argued that legal professional privilege is a client privilege derived from fundamental rights, which have become even more important since the Lisbon treaty was signed, giving such rights the same value as treaty provisions.

The European Commission, the sole entity opposing Akzo’s appeal, said in the hearing that claims that legal professional privilege was a fundamental right were superficial.

Kokott concluded in her opinion today that existing case law on the matter should stand.

The eight parties that intervened in support of Akzo’s appeal were: Ireland; the UK; the Netherlands; the Council of Bars & Law Societies of Europe; the Dutch Bar; the European Company Lawyers Association; the International Bar Association; and the Association of Corporate Counsel.