The group that represents in-house counsel at FTSE 100 companies has attacked a preliminary ruling of the European Court of Justice (ECJ) on legal privilege rights for in-house lawyers as illogical and ‘flawed’.

The GC100 said it was ‘very disappointed’ by advocate general Juliane Kokott’s opinion in the Akzo Nobel appeal, which will be decided by the full court later this year.

Last week, Kokott recommended to the ECJ that, at EU level, legal privilege should not attach to companies’ internal communications with their in-house lawyers. The advocate general’s opinion is not binding on the ECJ, but is followed in most cases.

GC100 chair John Davidson, who is general counsel and group company secretary at brewer SABMiller, said: ‘As is clearly recognised in the English courts, there is no fundamental distinction between the obligations that a solicitor in England and Wales owes to their client…whether they are employed in private practice or in-house.

‘Accordingly, the "logic" in the opinion is fundamentally flawed.

‘The GC100 firmly believes that the preservation of legal professional privilege for in-house lawyers supports, rather than detracts from, a good compliance environment and encourages respect for the law. It is therefore in the interests of the public, as well as the company, that it is maintained.’

Davidson added: ‘The seeking and giving of legal advice will be inhibited by concerns that written communications with in-house counsel will not be protected from disclosure.’

Law Society chief executive Desmond Hudson said that Chancery Lane was ‘disappointed’ with Kokott’s opinion. ‘For our part, a solicitor is a solicitor, whether working in practice or as general counsel for a company,’ he said.

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

Kokott said in her opinion that in-house lawyers, regardless of whether they are members of bars or law societies, do not enjoy the same degree of independence from their employer as a lawyer working in an external law firm. She also rejected pleas to extend the scope of in-house legal privilege on the basis of an increasing trend among member states to assign legal privilege to communications to in-house lawyers.