On 8 December 2022, the Court of Justice of the European Union ("CJEU") delivered its judgment in Orde Van Vlaamse Balies a.o. (the "Orde Ruling"), clarifying that legal professional privilege is protected not only as part of the rights of defence, but also under the right to protection of private communications.
In light of the Orde Ruling, the EU position now holds that in circumstances where an Irish company is (i) subject to EU proceedings, and (ii) wishes to invoke a claim of legal professional privilege in relation to specific advices given to it, the European Commission (or other investigatory body) cannot (without merit) reject this assertion of privilege on the basis that such advices do not relate to the defence of the company's rights, with respect to the proceedings at hand. Thus, the Orde Ruling holds that legal professional privilege should not only extend to communications exchanged between Lawyer/Client which relate to the defence of the proceedings, but to legal advice more generally (eg, the provision of competition and regulatory advice).
Narrowing the gap between the Irish and EU standard:
In the Irish context, legal professional privilege already explicitly covers the protection of confidential communications between lawyers and their clients which concern the seeking, giving and receiving of legal advice. As such, in expanding the scope of legal professional privilege, at an EU level, to legal advices which do not form part of the client's right of defence, the Orde Ruling has narrowed the divide between both the Irish and EU standard; a welcome change for Irish companies, the subject of an EU investigation.
It is, however, important to note one particular distinction between both the Irish and EU standard (post Orde) – the treatment of in-house lawyers.
Under Irish law, an in-house solicitor is entitled to assert a claim of legal advice privilege over relevant, confidential communications between him/her and certain other individuals within the company (in instances where he/she is acting in their capacity as legal adviser).
Notwithstanding the Orde Ruling, the CJEU has previously ruled (the Akzo decision) that under EU law, internal communications between in-house lawyers and company employees are not privileged in the context of competition law investigations by the European Commission. This continues to remain the case.
Although the judgment concerns tax proceedings, its outcome provides a basis for Irish companies facing competition and / or other EU investigations to claim confidentiality over legal advice even if it was not provided for the purposes of challenging said investigation.
We set out below further context to the concept of legal professional privilege, and the outcome of the Orde Ruling.
Background – what is Legal Professional Privilege?
Legal professional privilege confers a right on clients (or a person who consults with a lawyer with a view to becoming their client) so that communications which they have with their solicitor are protected from disclosure to any other party and as such, the solicitor cannot be compelled to disclose those communications.
In Ireland, legal professional privilege is recognised as a constitutional right flowing from the protection of administration of justice under Article 34 of the Constitution. It is also protected at EU level as an aspect of the right to a fair trial and the right to privacy under the European Convention of Human Rights (Article 6 and Article 8, respectively) and under the Charter of Fundamental Rights of the EU (the "Charter") (Article 47 and Article 7, respectively).
The justification for legal professional privilege was described by Smyth J. in Shell E. & P. Ireland Limited v McGrath (No. 2)  2 574, holding that:
"The rationale for legal professional privilege is to ensure that a client may fully instruct his lawyer freely and openly safe in the knowledge that what he says to his lawyer in confidence will never be revealed without his consent."
Similarly, the European Court of Human Rights in Michaud v France (1232/11) referred to "the fact that lawyers are assigned a fundamental role in a democratic society, that of defending litigants."
Differences in Scope of Legal Professional Privilege between Irish and EU Law – pre Orde Ruling
Scope of privilege – Prior to the decision in Orde, and based on established EU case law, it was generally recognised that legal professional privilege in competition law proceedings only covered written communications exchanged between external counsel and a client which pertains to the subject matter of the proceedings at hand – that is "(1) were made for the purposes of and in the interest of a client's right of defence, and (2) were addressed to or emanated from independent lawyers". (Case 155/79, AM & S and Case C-550/07, Akzo). Privilege did not extend to any other type of legal advice.
Treatment of in-house lawyers – Most notably, the Akzo decision also determined that internal communications between in-house lawyers and company employees were not privileged in the context of competition law investigations by the European Commission.
Scope of privilege – The Irish standard affords additional protection to those who seek to resist the disclosure of information related to legal advice, in that privilege extends to legal advice more broadly (as opposed to only advices prepared in the context of a company's right of defence). Legal professional privilege applies to all confidential communications, whether oral or written, between a lawyer and their client in two instances:
(i) where the purpose of the confidential communication is the seeking, giving, or receiving of legal advice ("Legal Advice Privilege") (not protected by EU law pre Orde Ruling); or
(ii) where the dominant purpose of the confidential communication is for use in actual or contemplated litigation ("Litigation Privilege") (protected by EU law pre Orde Ruling).
Treatment of in-house lawyers – In the case of in-house lawyers, the Irish courts differ from the CJEU on this point. Under Irish law, a company that employs an in-house lawyer is entitled to assert a claim of legal advice privilege over relevant, confidential communications between the in-house lawyer and certain other individuals within the company, but only where that in-house lawyer is acting in their capacity as the company's legal adviser.
Expansion of Legal Professional Privilege under EU Law – the Orde Ruling C-694/20
Within the Orde Ruling, and pursuant to a referral under Article 267 of the Treaty of the Functioning of the European Union ("TFEU"), the CJEU was asked to consider whether the disclosure obligations (under Belgian law) imposed on lawyers advising on cross-border tax arrangements breached the Charter. The CJEU found that Article 7 of the Charter protects the confidentiality of all correspondence between individuals and affords strengthened protection to exchanges between lawyers and their clients. Article 7 of the Charter therefore necessarily guarantees the secrecy of a legal consultation, "both with regard to its content and to its existence".
In its concluding assessment, the CJEU held that Article 7 of the Charter guarantees the exchanges between a lawyer and their client, with such confidentiality covering "not only the activity of legal defence, but also to legal advice". As such, The CJEU extended the scope of legal professional privilege to 'legal advice' more widely, and not just to those advices prepared in the context of defending litigation. This represents a material shift in position and further strengthens a parties' right to resist the disclosure of confidential information prepared by its legal advisers.
The Orde Ruling has no impact on the EU-law treatment of in-house lawyers. As such, it continues to remain unlikely that communications between an in-house lawyer and client will be protected by privilege in the course of an investigation by the EU Commission.
The Orde Ruling further solidifies the importance of legal professional privilege in the context of EU law proceedings, and confirms its legal status under the Charter. Moreover, the Orde Ruling extends the scope of the concept of privilege to include all types of legal advices, and not just those prepared with a view to defending/challenging litigation. In expanding the scope of legal professional privilege, the Orde Ruling narrows the divide between Irish and EU law, making it easier for companies to understand the categories of legal advice / confidential information that it can resist disclosing when subject to EU litigation / investigations.
While the Orde Ruling may be challenged at a later stage, it remains critically important that Irish-based companies continue to take proactive steps to ensure that communications with their relevant legal adviser are protected by privilege – such steps include:
- Marking all correspondence pertaining to a request for legal advice and / or possible defence of litigation as 'Privileged and Confidential';
- Circulating privileged documents to a select number of individuals / only when necessary (ie, 'on a need to know basis');
- Trying not to mix privileged and non-privileged communications; and
- Where in doubt, specific legal advice should be sought from your respective legal adviser(s).