Veronica Bailey explains the reasoning behind the ECJ’s decision to rule out privilege for in-house counsel
The need for privilege was eloquently summed up by Lord Slynn in AM & S Europe Ltd v EC Commission (C 155/79) [1983] 1 All ER 705 when he was Advocate General: “It springs essentially from the basic need of a man in a civilised society to be able to turn to his lawyer for advice and help, and if proceedings begin, for representation; it springs no less from the advantages to a society which evolves complex law reaching into all the business affairs of persons, real and legal, that they should be able to know what they can do under the law, what is forbidden, where they must tread circumspectly, where they run risks.”
However, AM & S Europe Ltd v EC Commission is one of the few instances when the Advocat General’s opinion was not followed by the court. The ECJ then decided that legal professional privilege did not apply to communications with in-house counsel. Some 27 years later with
