European Court Expands Scope Of Legal Professional Privilege Under EU Law

• Jurisdiction: European Union
• Law Firm: Herbert Smith Freehills
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Author: Herbert Smith Freehills
• Published date: 23 February 2023

In a recent ruling on a preliminary reference, the Court of Justice of the EU (CJEU) clarified that legal professional privilege under EU law applies to legal advice in general, such as regulatory or commercial advice, as opposed to only advice that is prepared in the context of the client's rights of defence in legal proceedings: Orde van Vlaamse Balies v Vlaamse Regering (Case C-694/20) ECLI:EU:C:2022:963.

The ruling extends the definition of EU legal professional privilege as set out in previous EU caselaw. It does not however affect the definition or scope of legal professional privilege under English law, for which there is a different test. For information on English law privilege, see our Handy Client Guide to privilege, which can be accessed as an interactive PDF or a web-based app.

Based on the AM&S and Akzo cases (considered here), both of which arose in the context of competition law dawn raids, it was generally recognised that EU legal professional privilege only applies to written communications between external lawyers...