In-house lawyers of NRAs may not represent their clients before the European Court of Justice: A case note on UKE (2011). Research Papers in Law, 3/2011

From the Introduction. It is not frequent for a National Regulation Authority (NRA) to bring an action against the Commission decision and, cynically speaking, case Prezes Urzędu Komunikacji Elektronicznej2 v Commission3 shows that the avoidance of a sweeping retaliation may be one of the reasons for it. The General Court followed the Commission‟s argument that, notwithstanding the peculiarities of the employment conditions of the Polish Regulator‟s legal counsel giving it virtually full independence, as well as the fact that the Polish law itself does not differentiate between in-house counsel and third party attorneys, the claim should be rejected on the grounds of inadmissibility. The GC based its judgment on Art 19 of the Statute of the Court of Justice4, which requires that, with the exception of the Member States' Governments and the EU Institutions, parties to the dispute must be represented by a lawyer. In so doing, the Court explicitly referred to the infamous Akzo Nobel Chemicals and Akcros Chemicals v Commission5 and EREF v Commission6. Most importantly, the Court stated that the lawyers representing Prezes Urzędu Komunikacji Elektronicznej (UKE) are bound to enjoy a degree of independence inferior to that of lawyers who are not linked to their clients by an employment contract7.

Legal privilege for in-house lawyers in the light of AKZO: a matter of law or policy? Research Papers in Law, 05/2011

From introduction. This paper discusses the arguments in favour of extending legal privilege to in-house lawyers in the light of the CJEU‟s judgement in AKZO. The previous jurisprudence is unambiguous, as the Court clearly stated in AM & S that the confidentiality of written communications between an undertaking and its lawyer is protected under Union law only when two cumulative conditions are fulfilled: they must be connected to the exercise of the client‟s rights of defence and the lawyer must be independent, that is, “not bound to the client by a relationship of employment”.1 This protection also applies to internal notes confined to reporting the content of communications with independent lawyers containing legal advice.2