11 października 2023 Jean-Charles Jaïs  -  Claudia Cavicchioli  -  Estelle Hiard Dispute Resolution

Legal privilege for in-house counsels soon to be recognized under French law

The legal privilege « à la française » should soon be recognized under French law, after its adoption by a joint legislative committee (Commission mixte paritaire) as part of the Ministry of Justice Orientation and Programming Bill for 2023-2027. The final vote is expected very shortly. 

This will be an important change for French companies, but also for foreign companies with subsidiaries in France, who will see legal advice provided by their in-house counsel (juriste d’entreprise) covered by privilege, especially since French law does not allow for lawyers to practice in-house. 

The conditions for privilege. According to the provision approved by the committee, legal opinions will be privileged if they meet the following conditions: 

  • author: they must have been drafted by the in-house counsel or, at their request and under their supervision, by a member of their team placed under their authority. The provision also lays down conditions relating to the training of the in-house counsel; 
  • addressees: the provision contains an exclusive list of addressees of these legal opinions, which includes the legal representative of the company or their delegate, its management, administrative or supervisory bodies, but also any entity required to issue opinions to these bodies, as well as a list of addressees at group level; and
  • identification: these legal opinions must be marked "privileged - legal opinion - in-house counsel" and must be identified and traceable within the company.

The protection afforded by the legal privilege. 

  • Which situations?
    • these privileged documents may not be seized or ordered to be delivered to a third party; nor may they be used against the company employing the in-house counsel or the companies of the group to which it belongs; but
    • the company employing the in-house counsel may waive privilege.
  • Which type of proceedings? 
    •  the provision refers to any procedure or dispute in civil, commercial or administrative matters; and
    •  privilege is not enforceable in criminal or tax proceedings. 

Penalties for fraudulent use of privilege. Fraudulently using the mention " privileged - legal opinion - in-house counsel" on a document that does not meet the above conditions is punishable by three years' imprisonment and a fine of 45,000 euros. 

Next steps. The provision, which was adopted by the National Assembly (Assemblée Nationale) on 18 July 2023 and approved by the joint legislative committee on 5 October, is due to be debated in a public session today. 

Once the provision has been adopted, and the implementing decrees published, it will likely be examined by the Constitutional Council (Conseil Constitutionnel). 

Differing opinions. This provision of the Orientation and Programming Bill for the Ministry of Justice for 2023-2027 has led to heated debate in public opinion. 

Representatives of independent administrative authorities, including the French Financial Regulation Authority (Autorité des Marchés Financiers) and the French Competition Authority (Autorité de la Concurrence), deplored the scope of this provision and expressed fears that it would hamper their activities. 

For their part, associations and representatives of in-house counsels welcome what they see as a major step forward for the competitiveness of French companies. 

Links and additional publication. The provision approved by the joint legislative committee is available here (in French, see article 19, II). We will publish a more detailed analysis once the provision has been definitively adopted.