Many companies operating in the U.K., including many U.S. companies, have been hoping that the case of Akzo Nobel Chemicals Ltd and Akros Chemicals Ltd v. European Commission now before the Court of Justice of the European Union will reverse a decades-old decision in a case called AM & S. For over thirty years, the AM & S case has held that under European law, there is no attorney-client privilege with respect to communications with in-house lawyers. The Akzo case is said to be the first sophisticated challenge to the ruling in AM & S, which is at odds with the law in places such as the U.S. and the U.K. where communications with your in-house counsel are privileged.

Today, however, Advocate General Juliane Kokott issued a written opinion concluding that in cartel investigations by the European Commission, there is no privilege for employees' communications with in-house lawyers. Procedurally, the opinion of the Advocate General is not binding on the Court of Justice, which will now begin its deliberations in the Akzo case. However, the Advocate General's opinion is the one individual and detailed opinion that typically comes out of Court of Justice cases, and is viewed as the "kickoff" for the Court's debate, said Christopher Thomas, a partner at Lovells LLP in Brussels.

Thomas told me today that the Advocate General opinions are usually pretty good at predicting which direction the Court of Justice will go in a case. He expects that a ruling will come from the Court in the next 6 to 12 months. With respect to today's opinion, Thomas said that "there will be a lot of extremely disappointed in-house lawyers out there. We shall just have to see whether the Court takes a more positive attitude to their role." He explained that the "no privilege" holding in the AM & S decision is viewed by many in-house attorneys as a "denial of their role in providing advice to their businesses."