I. Introduction

On 3 August 2026, the President of the EU General Court issued an order addressing the scope of legal privilege under EU law. The order dismissed Broadcom’s application to suspend a decision by the European Commission requiring the production of documents in its investigation into Broadcom’s allegedly abusive software licensing practices.

The purpose of Broadcom’s application for interim measures was to enable it to withhold certain documents until the EU General Court rules on the main appeal against the decision.  In the main appeal, Broadcom had argued that the Commission’s decision was unlawful in so far as it compelled the production of documents that were privileged under the laws of third countries, such as the United States.

Although issued in interim proceedings and on well-established points of law, the order provides welcome guidance on the right balance between the European Commission’s investigative powers and the parties’ rights of defence. The President of the EU General Court highlights with unprecedented clarity the fundamental importance of legal privilege as a core part of procedural fairness in EU competition investigations.

That reasoning, and the further discussion on the European Commission’s practice in relation to legal advice from non-EU external lawyers, should help companies navigate the complexities of maintaining privilege over legal advice they receive, especially in global competition investigations.

II. Key takeaways

The order:

• Underscores the fundamental importance of legal privilege in the EU. The order recognises that legal privilege constitutes a fundamental right of defence under Article 7 of the EU Charter of Fundamental Rights and Article 8(1) of the European Convention on Human Rights.  For the first time, the General Court makes a positive case in favour of the fundamental importance of legal privilege in a democratic society.  This marks a welcome departure from the jurisprudence to date, which has been wary of legal privilege as a constraint on the European Commission’s powers to effectively enforce the law.  Here, the President of the General Court endorses the right to a ‘safe space’ with a lawyer: any person must be able, without constraint, to consult a lawyer who can give independent legal advice to those in need of it.

• Reaffirms the scope of legal privilege in the EU. EU legal privilege protects communications containing legal advice between a client and EU-qualified external lawyer, to the exclusion of legal advice provided by in-house counsel.

• Supports the European Commission’s approach to preserving the privileged nature of advice from non-EU external counsel. The order lends support to the European Commission’s practice of accepting privilege claims over legal advice from external lawyers qualified outside the EU on grounds of international comity. The order considers that, given the fundamental differences between independent external counsel and in-house counsel, the Commission’s approach avoids undermining the essence of the rights of defence.

• Underscores the importance for companies to only produce in-house advice in response to compulsory information requests. This is to (i) mitigate the risk of waiving privilege over such material in other jurisdictions, whilst (ii) avoiding procedural fines for failure to comply with information requests in the EU.

• Suggests that obtaining interim relief in legal privilege disputes over in-house counsel advice will prove challenging. The order suggests that interim relief against a Commission decision requiring the production of advice from in-house counsel may prove challenging. This is because, even if the main appeal is successful, any potential damage resulting from the Commission’s reading of the in-house legal advice could be remedied by removing the documents from the file and thus preventing the Commission from relying on the advice against the party under investigation.  This seems quite bold and raises the question about any broader implications for interim measures against information requests or document seizures, beyond in-house legal advice. It seemingly jars with precedent such as the order of the then-President of the Court of First Instance in Akzo Nobel, which supported the parties’ rights to have interim relief in respect of advice from external counsel contained in a sealed envelope in the context of a dawn raid.

III. The Ins & Outs of the Order

The order builds on well-established case law regulating legal privilege in the EU to provide a firmer basis for its protection. It supports practices designed to protect legal advice by external counsel to the greatest extent possible under EU law:

• “In”: legal privilege is fundamental to procedural fairness. The order expressly protects legal privilege as a fundamental right under Article 7 of the EU Charter of Fundamental Rights and Article 8(1) of the European Convention on Human Rights and makes a positive case for its significance to procedural fairness.  The order states that any person must be able, without constraint, to consult a lawyer who can give independent legal advice to those in need of it. This protection reflects the fundamental role of lawyers in ensuring that parties can obtain independent legal advice and effective representation. The order emphasises that legal privilege imposes an important limitation on the European Commission’s investigative powers: it precludes the Commission from reading the content of privileged documents and, were the Commission to have read them, from using such documents as evidence to prove an infringement of European Union competition law and to impose a fine.

• Still “out”: in the EU, legal privilege does not apply to legal advice from in-house lawyers (wherever qualified). Regrettably, albeit not unsurprisingly, the order follows the legal principles established in the AM & S and Akzo Nobel judgments: in the EU, legal privilege only covers legal advice provided by independent lawyers. According to the order, the reason for this approach lies in the lawyer’s professional duty to facilitate the administration of justice. This requires the lawyer to provide, in full independence and in the overriding interests of justice, such legal assistance as the client needs. Independence, in EU jurisprudence, requires the absence of any employment relationship between the lawyer and his or her client. As a result, once again the General Court confirms that legal professional privilege in the EU does not cover internal communications with in-house lawyers.

• Still “in” controversy: advice from external counsel qualified outside of the EU. The Broadcom order did not have to address the issue of whether legal privilege in the EU applies to legal advice provided by external lawyers qualified outside the EU, such as in the United States. This was because the European Commission had agreed ‘exceptionally’ to exclude legal advice from external lawyers qualified outside the European Union from the scope of the contested decision. This ‘exception’ is in line with existing European Commission practice. While the European Commission interprets the AM & S and Akzo Nobel judgments as limiting EU legal privilege to EU-qualified lawyers, it typically accepts privilege claims over non-EU external counsel advice on the basis of international comity – and did so again in Broadcom. The order considers that communications with non-EU external counsel deserve greater protection than advice from in-house lawyers, and appears to find the European Commission’s approach of excluding materials from Broadcom’s non-EU external counsel suitable to protect the company’s fundamental rights of defence.

IV. Practical implications – What companies can do to preserve privilege post- Broadcom

• Properly label communications seeking legal advice from external counsel.  This will facilitate privilege claims and avoid inadvertent disclosure of protected advice under EU law.

• Engage early on with the European Commission (or EU national competition authorities) regarding advice from non-EU external counsel to confirm the European Commission will abide by international comity and accept privilege claims over such advice.

• Mitigate risks of privilege waiver over in-house counsel advice in other jurisdictions. Avoid any voluntary disclosure of in-house counsel materials to the European Commission, which could result in a waiver of privilege in certain jurisdictions such as the U.S. or UK. Consider producing such materials only in response to a compulsory request for information (i.e., a decision that imposes a statutory duty on the addressees and/or could result in sanctions for failure to comply).
• Consider litigation strategy over discovery disputes. The order suggests that interim measures against a decision requiring communications with in-house counsel may face a high bar to succeed; in some cases, expedited proceedings on the merits may offer a more effective route.