Legal professional privilege (LPP) in France and the European Union

Major reform of confidentiality protections for in-house counsels in France

In response to growing calls from the business community and legal practitioners, France adopted a major reform in early 2026 extending confidentiality protection to certain consultations prepared by in-house lawyers.

On 14 January 2026, the French Senate approved a bill extending the scope of legal privilege to consultations of in-house lawyers. Following a review by the Conseil constitutionnel (Decision No. 2026-900 DC of 18 February 2026), Law No. 2026-122 of 23 February 2026 on the confidentiality of in-house legal counsel consultations was published in the Official Journal on 25 February 2026.

Conditions and limitations of the new regime

The reform constitutes a significant evolution in French legal culture, although its scope remains carefully circumscribed. The new regime introduces a series of cumulative conditions that must be satisfied in order for in-house legal consultations to benefit from confidentiality protection, including that:

• The consultation must be ‘drafted by in-house lawyer or, at their request and under their supervision, by a member of their team acting under their authority’.
• The in-house lawyer or such team member must meet specific qualification requirements, namely holding a master’s degree in law (or an equivalent French or foreign qualification) and having completed ethics training.
• The protection applies only to ‘legal consultations’, defined by the law as ‘a personalized intellectual service aimed at providing an opinion or advice based on the application of a legal rule.’ The regime therefore excludes broader commercial, strategic or operational communications merely involving legal personnel.

The law also imposes strict formal requirements, including that:

• Protected consultations must expressly bear the label ‘confidentiel – consultation juridique – juriste d’entreprise’ and be subject to identification of the author and to a specific classification in the company’s files.
• Successive versions of a legal consultation drafted under such conditions are covered by the same confidentiality.
• Fraudulent use of this designation is subject to criminal sanctions of up to one year’s imprisonment and a €15,000 fine.
• Protected consultations may only be addressed to specific recipients within the company, including senior management or the company’s legal representative.

Despite its importance, the reform remains deliberately narrow in scope. Most notably, the new confidentiality regime applies only in civil, commercial and administrative matters. In those matters, protected consultations may not be subject to ‘seizure or an obligation to be handed over to a third party, including a French or foreign administrative authority’. By contrast, criminal and tax proceedings remain entirely excluded from the protection.

Finally, confidentiality may be challenged or lifted under judicial supervision, in particular where, in administrative proceedings, the relevant consultations ‘would have had the purpose of facilitating or inciting the commission of breaches punishable by a sanction’. In its decision, the Conseil constitutionnel also held that, in civil or commercial proceedings, confidentiality may be lifted when the consultation was intended to facilitate or incite fraud against the law or third-party rights.

Equally significant is the fact that the new French regime does not apply in the context of investigations conducted by the European Commission (the Commission) or, more broadly, when EU authorities exercise their control powers, including where such powers are delegated to a national authority.

No EU recognition of LPP for in-house counsels

At the European Union level, LPP continues to apply exclusively to communications exchanged with independent external lawyers admitted within the European Economic Area. The Commission reaffirmed this position in a policy brief issued in November 2025 rejecting calls to extend privilege to in-house lawyers in competition proceedings. Relying on the long-standing Akzo Nobel case law of the Court of Justice of the European Union (the ECJ), the Commission maintained that the employment relationship between a company and its in-house lawyer prevents the degree of independence required for EU legal professional privilege.

The fragmented French approach to LPP for external counsels

Beyond the specific issue of in-house counsel, French LPP more generally continues to reflect a tension between restrictive and expansive interpretations adopted by different courts.

Under Article 66-5 of Law No. 71-1130 of 31 December 1971:

‘In all matters, whether relating to advisory work or to litigation, consultations addressed by a lawyer to his or her client or intended for the latter, correspondence exchanged between the client and the lawyer, and between lawyers – except, in the latter case, for correspondence marked ‘official’ – as well as interview notes and, more generally, all documents in the file, are covered by professional secrecy.’

Article 8 of the European Convention on Human Rights and Article 7 of the Charter of Fundamental Rights also protect the confidentiality of correspondence.

However, French case law remains divided on the practical scope of that protection. In fact, a divergence persists within the French Supreme Court (the Cour de cassation) as to the scope of LPP. The Criminal Chamber of the Cour de cassation continues to adopt a restrictive approach, limiting privilege essentially to documents relating to the exercise of defence rights. Recent decisions in 2024 and 2025 confirmed that internal company communications do not become privileged merely because lawyers are copied on them, unless they contain a genuine legal defence strategy.

By contrast, the Commercial Chamber of the Cour de cassation has adopted a broader interpretation, according to which confidentiality attached to the lawyer–client relationship cannot be limited to judicial proceedings alone. In particular, a decision dated 8 October 2025 reaffirmed that all correspondence exchanged between lawyers and clients in the context of legal advice or defence work should benefit from professional secrecy. This decision of the Commercial Chamber is particularly welcomed since the restrictive approach limiting confidentiality to exchanges related solely to the exercise of the rights of the defence is clearly contrary to Article 66-5 of the 1971 Law and to the case law of the ECJ.

EU recognition of LPP for external counsels

At the European Union level, the recognition of LPP has progressively evolved toward a broader protection of lawyer–client communications. While the ECJ initially limited privilege to communications exchanged for the purposes of the client’s rights of defence and between a client and an independent EEA-qualified external lawyer, its more recent case law has significantly expanded that approach.

In particular, the ECJ held in December 2022 that legal professional privilege covers all communications between external lawyers and their clients, including legal consultations, irrespective of whether they are linked to ongoing litigation or investigative proceedings. This broader understanding of privilege was confirmed again in September 2024 and reflects a clear trend toward stronger protection of legal advice within the European Union.

Key takeaways

The legal framework for LPP in France and the EU remains both fragmented and evolving. While the 2026 reform undeniably strengthens the protection afforded to in-house legal departments in France, important limitations and uncertainties remain – particularly in criminal, tax and EU competition matters. Companies operating across jurisdictions should therefore continue to approach sensitive internal communications with caution.