One thread the order leaves conspicuously loose is the treatment of communications with independent external lawyers qualified outside the EU. The Commission ultimately excluded that category from its request, but only expressly on an "exceptional" basis tied to the circumstances of this case. Critically, the order records that the Commission's rationale was international comity, not a concession that EU privilege law actually extends that far. As the Court itself notes, comity is a matter of usage and courtesy, not a binding legal rule. This means the Commission remains free, in principle, to take a different view in the next investigation, or even to revisit its own position in this one.
That matters because the doctrinal position on non-EU external counsel has never been tested by the EU courts. AM & S Europe and Akzo Nobel establish that EU privilege protects communications with independent lawyers entitled to practise in a Member State. They say nothing about lawyers admitted outside the EU who are, on any view, independent of their corporate client in the way AM & S Europe requires.
There is a coherent argument that such lawyers should qualify for EU privilege protection on the independence rationale, even though they are not EU-qualified; equally, there is a coherent argument that the geographic limitation the Court drew in AM & S Europe (lawyers "entitled to practise in one of the Member States") is just as much a hard boundary as the independence requirement. This order does not resolve that tension.
The practical stakes are real. Regulatory practice does not appear to be entirely consistent: businesses under investigation have, in some instances, been permitted to withhold both external and in-house non-EU counsel communications, suggesting that Commission case teams may sometimes take a more generous approach than the strict AM & S Europe line would require.
Whether that generosity survives consistently, or whether the Commission would reach the same accommodating answer if asked again today, is very much an open question after Broadcom. Businesses and their advisers negotiating the scope of Article 18 of Regulation 1/2003 requests should treat the exclusion of non-EU external counsel communications as a matter for case-by-case negotiation, not as a settled legal entitlement.