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Slow Boats From Europe

By James M. Beck and Mark Herrmann

When American courts hand down important decisions, we try to act quickly. We link to the decisions as soon as we hear about them, and we try to publish an analytical post within 24 hours.

That's the life of a blogger.

When stuff comes from Europe, we're a little slower.

We don't hear about those decisions quite as quickly and, even after we read them, we're not always sure what they mean.

But ignorance has never stopped us before, and we won't let it get in the way now!

It looks to us as though two fairly important decisions came down in Europe last Fall.

On September 17, 2007, the Court of First Instance (don't even think of asking what that entity is; we're bluffing here) seemingly held, in line with existing case law, that only communications between corporations and outside counsel are protected by the attorney-client privilege. Communications between corporations and their own in-house counsel are generally not privileged. Joined Cases T-125/03 and T-253/03 Akzo Nobel Chemicals and Akcros Chemicals v. Commission. In lieu of a legitimate citation (which would send us scurrying back to a Bluebook, and we're way too old for that), here's a link to the opinion.

The case involved a governmental antitrust investigation. The defendants asserted attorney-client privilege. So far as we can tell, the money quotes (we assume they're valued in euros) appear in paragraphs 166 to 169 of the opinion. The Court of Justice had previously held that privilege applies only "to the extent that the lawyer is independent, that is to say, not bound by a relationship of employment." (Para. 166.) "It follows that the Court expressly excluded communications with in-house lawyers, that is, legal advisers bound to their clients by a relationship of employment, from protection." (Para. 167.) The Court of First Instance therefore held "that the correspondence exchanged between a lawyer bound to Akzo Nobel by a relationship of employment and a manager of a company belonging to that group is not covered." (Para. 169.)

We had long been aware that the attorney-client privilege skated on thinner ice in Europe than it does in the United States. To our untrained eyes, this decision makes the ice thinner still.

The second European news that finally sailed its way over the Atlantic is a ruling by the European Court of Justice deciding the enforceability of German advertising laws that were more stringent than a directive on the same subject issued by the European Parliament. The case is Gintec International Import-Export GmbH v. Verband Sozialer Wettbewerb eV. , Case C-374/05, and we're again providing this link in lieu of a decent cite.

There, the court held that the European Community Code is meant to remove barriers to trade between members. To that end, the Community Code enumerates when Member States may adopt stricter legislation than that enacted by the Community as a whole. Unless the Community creates an option for member States to impose more restrictive terms, the standard set by the Community creates both a minimum and a maximum standard. Member States may not impose limitations on pharmaceutical advertising that is more restrictive than the Community's law.

There will surely be disputes in the future about how that ruling by the European Court of Justice applies in particular Member States, so don't go hog-wild with your advertising campaigns based on what we've written here.

But, from where we sit, it looks as though Europe is gradually creating uniform advertising standards that will make it much easier for drug companies to do business overseas.

Full post as published by Drug and Device Law on April 28, 2008 (boomark / email).