The European Commission has argued that any claim that legal professional privilege is a fundamental right under EU law is ‘superficial’.

In the Akzo Nobel appeal hearing at the European Court of Justice (ECJ) in February, the commission also argued that in-house lawyers could not be considered fully independent because they have a vested interest in the advice they give. The advocate general’s opinion is expected this month.

The case was heard in the court’s Grand Chamber before all 12 judges. Eight parties, comprising three member states and five lawyers’ groups, have intervened on Akzo Nobel’s behalf, against the commission.

Akzo Nobel, a Dutch chemicals company, and the intervening parties argued 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. They 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 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. Its decision could have far-reaching implications for in-house lawyers across Europe.

The commission said that claims that legal professional privilege was a fundamental right were superficial. It argued that if it were found to be a fundamental right, as argued by the appellant and interveners in the case, then many member states would be in breach of this right. It also argued that the position of legal professional privilege was uncertain in many member states.

The commission acknowledged that there would be an unavoidable impact on lawyers if the ECJ confirms the Court of First Instance decision, but that this was a side-effect of the EU’s competence to regulate competition law, and would not have the effect of regulating lawyers. It argued that the case was not about limiting privilege, but defining its scope.

The commission was the sole entity opposing Akzo Nobel’s appeal. The eight parties that intervened in support of privilege for in-house lawyers 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.An ECJ ruling is expected at the end of the summer.