On 23 February 2026, France adopted Law n° 2026-122, introducing a legal privilege for certain legal opinions issued by in-house counsel
The reform acknowledges, for the first time under French law, a distinct legal privilege for in-house counsel alongside the traditional attorney-client privilege reserved for members of the Bar. While this represents a significant improvement for French companies, its practical impact on competition law remains uncertain due to the primacy of European law and the restrictive approach traditionally adopted by French competition authorities and courts.
A new legal privilege subject to strict conditions
The new legal privilege only applies to legal opinions which meet four cumulative conditions:
First, the opinion must be drafted by an in-house lawyer holding a Master’s degree in law (or an equivalent qualification) and having completed a specific ethics training.
Second, it must be submitted exclusively to the management, administrative or supervisory bodies of the employing company, its group or its subsidiaries.
Third, it must constitute legal advice or a legal opinion based on the application or interpretation of a rule of law.
Finally, the document must bear the mandatory wording: “Confidential – Legal Opinion – In-House Counsel.”
Where these conditions are met, the opinion cannot, in principle, be seized or disclosed in civil, commercial or administrative proceedings. However, the privilege is not absolute. It remains subject to judicial review and may be set aside where there are grounds to believe that the document falls outside the statutory requirements or facilitates unlawful conduct.
Most importantly, the new regime is expressly excluded from criminal and tax proceedings and is expressly without prejudice to the investigative powers of EU authorities.
An uncertain impact on competition law proceedings
Whether the reform will significantly strengthen the protection available to companies in competition law proceedings remains uncertain.
At EU level, legal professional privilege remains governed by the AM & S (CJEC, case n°155/79, 18 May 1982) and Akzo Nobel (CJEU, case C-550/07, 14 September 2010) judgments, under which only communications with independent external counsel benefit from protection. The European Commission has recently reaffirmed, in the context of the ongoing review of Regulation n°1/2003, that it sees no justification for extending legal professional privilege to in-house counsel.
French law nevertheless introduces an important distinction. In its decision of 18 February 2026, the French Constitutional Council held that investigations conducted by French authorities under their own statutory powers, including where they apply EU competition law, should not automatically deprive companies of the protection granted by French law. As a result, the new privilege should apply during investigations carried out by the French Competition Authority (“FCA“) in its own name, but not where it acts on behalf of the European Commission.
Although this interpretation significantly enhances the protection available to in-house counsel during national investigations, its practical application remains to be tested.
Practical limitations of the new privilege
Despite this reform, companies should be cautious before relying on the new privilege.
First, the FCA retains the possibility of challenging the confidentiality of legal opinions before the juge des libertés et de la détention (Liberty and Custody Judge, “JLD“), particularly where it considers that a document facilitated or encouraged an infringement of competition law. The Constitutional Council also confirmed that this mechanism applies where the FCA exercises its ordinary powers to request documents.
Secondly, the exclusion of criminal proceedings substantially limits the effectiveness of the reform. As criminal enforcement of competition law is becoming more frequent in France, documents protected in an administrative investigation could ultimately become accessible in the course of subsequent criminal proceedings.
Finally, uncertainty also persists regarding the relationship between the new privilege and attorney-client privilege. French case law continues to adopt a restrictive interpretation of the latter in the context of competition inspections by limiting protection to communications connected with the rights of defense (Cour de cassation, criminal chamber, 13 January 2026, n°24-82.390). This approach appears difficult to reconcile with the broader protection of legal professional privilege recognized by the CJEU and the European Court of Human Rights.
Thomas Lamy
Avocat à la Cour
Grall & Associés
