In a landmark case decided on 15 March 2013, the Dutch Supreme Court recognised the existence of a general legal privilege for in-house attorneys. On 14 September 2010 the European Court of Justice had refused to accept such a privilege for Dutch in-house attorneys in the context of EU competition law (Akzo Nobel/Commission). According to the ECJ, the employment relationship precludes an in-house attorney from being sufficiently independent to justify granting him/her the privilege. Following that decision, the burning question was whether the Dutch Supreme Court would adopt the same approach for in-house attorneys if they are active in areas of law other than EU competition law. The answer is no: the Supreme Court has now firmly established a legal privilege for in-house attorneys who have been admitted to the bar and comply with requirements guaranteeing their independence.
The Dutch Bar Association (Nederlandse Orde van Advocaten) and
the Dutch Association of In-house Attorneys (Nederlands Genootschap
van Bedrijfsjuristen) supported the right of in-house attorneys to
invoke the privilege. There are over 500 in-house attorneys in the
Netherlands who have been admitted to the bar. The Supreme
Court's decision safeguards the confidentiality of their advice
and communications insofar as they are acting in the interest of
their client-employer as an attorney.
The case in favour of an in-house attorney's legal privilege
was argued before the Supreme Court by Freerk Vermeulen of
NautaDutilh in litigation for the Dutch multi utility company
Delta.
Click here for the judgment (only available in Dutch).
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