III. THE NEGATIVE IMPLICATIONS OF EU PRIVILEGE LAW UNDER AKZO NOBEL AT HOME AND ABROAD

Abstract

On 14 September 2010 the Court of Justice of the European Union (ECJ) delivered its judgment in Akzo Nobel.1 The judgment and its preceding opinion focused on the application of legal professional privilege to communications between a client and in-house legal counsel. The less-emphasized aspect of the case was the Court's decision to exclude all lawyers qualified outside of the European Union (EU) from the application of legal professional privilege.2 Because the application of legal professional privilege to lawyers from third States was not the focus of Akzo Nobel, the issue was lost in the extensive debate surrounding privilege and in-house legal counsel. The Court unfortunately missed an opportunity to reshape EU privilege law in acknowledgement of its negative consequences on the EU human rights framework and also on the EU's relationships with countries which do not apply a similar bright line rule. These implications will be discussed below with a particular emphasis on the EU's obligations under the European Convention on Human Rights (ECHR) and its relationship with the United States (US).