Judgment of the CJEU of September 26, 2024
Yesterday, the CJEU issued a ruling concerning attorney-client privilege in the context of legal advisory services, which raises questions about the compliance of certain French provisions and recent rulings by the Constitutional Council with the Charter of Fundamental Rights of the European Union.
The Court was asked, in a preliminary ruling, whether a lawyer may invoke attorney-client privilege againstadministration when the latter request disclosure of a consultation regarding corporate law.
The Court then notes that the protection afforded by both Article 8(1) of the ECHR and Article 7 of the Charter“provides enhanced protection for communications between lawyers and their clients” and that “this protection covers not only the act of defending a client but also the provision of legal advice” (§49).
It therefore held that "legal consultation with a lawyer, regardless of the area of law concerned, is entitled to the enhanced protection guaranteed by Article 7 of the Charter for communications between a lawyer and his or her client. It follows that an injunction such as the one at issue in the main proceedings constitutes an interference with the right to respect for communications between a lawyer and his or her client guaranteed by that article”(§51).
Furthermore, when asked whether the Luxembourg system complies with the Charter given that it“prohibits a lawyer, who is the subject of a request for disclosure of information toadministration, from refusing access to information entrusted to them in the exercise of their profession, insofar as it concerns facts of which they became aware during the advice or representation they provided in tax matters, and unless the questions concern matters whose answers would expose their client to the risk of criminal prosecution,” the Court states that "by removing almost entirely from the enhanced protection afforded to attorney-client privilege under Article 7 of the Charter the content of legal consultations provided in tax matters—namely, an entire branch of law in which attorneys are likely to advise their clients—this protection is rendered meaningless even within that branch of law" (§72).