Disparity in legal privilege rules across the European Union is threatening to undermine in-house lawyers' ability to advise on competition matters, a leading competition lawyer said last week.

Jonathan Scott, head of EU and competition at City firm Herbert Smith, told delegates at an Association of Corporate Counsel Europe conference that different rules over privilege - with some countries restricting the legal privilege afforded to internal counsel - could fetter the role of in-house lawyers in advising on the new competition regime introduced in May this year.


He said: 'In the UK we are seeing a pushback on privilege. But the whole question that there are different rules of privilege in different member states is highly unsatisfactory, when the entire thrust of the new "self-assessment" legislation is that companies should be able to use their own internal legal advisers to make assessments. It is in companies' interests to press for harmonised privilege rules - the present situation is not advantageous to anyone.'


Mr Scott added that he was alarmed by Office of Fair Trading (OFT) proposals to diminish the scope of privilege in the UK. He said the OFT had issued a consultation paper proposing that it should not have to recognise privilege on documents transferred to the UK from competition authorities in states where privilege did not apply to them.


Susan Hankey, competition partner at City firm CMS Cameron McKenna, warned that competition authorities in the EU accession states would face a steep learning curve. She said: 'In my experience, the regulators there are full of bright young things who have completed special training, but have no experience of working as inside or outside counsel. They will have a considerable fear factor to overcome when making decisions.'