General counsel to defend legal privilege before CJEU
The Association of Corporate Counsel (ACC) is to intervene in a Court of Justice of the EU (CJEU) case Broadcom and VMware International v Commission.
The ACC announced that it filed an action to defend legal professional privilege for in-house lawyers, represented by global law firm Jones Day.
It represents more than 48,000 corporate lawyers globally.
ACC president Jason L Brown said (13 August): The number of EU member countries recognising privilege for in-house counsel has more than doubled in the last 15 years, and ACC urges the Commission to consider doing the same.”
Compel disclosure
The European Commission wants to compel the disclosure of internal documents and legal advice created by US-based in-house counsel during an antitrust investigation.
While US law and various EU member states protect in-house counsel communications under legal privilege, the European Commission does not recognise privilege for in-house lawyers in competition and antitrust proceedings.
The ACC is arguing that stripping confidentiality from in-house legal advice harms corporate compliance.
It told the Law Society of England and Wales Gazette that privilege does not shield the underlying facts from disclosure and a company cannot make a fact secret simply by telling the in-house lawyer.
ACC vice-president Susanna McDonald said: “Companies rely on in-house counsel to provide candid advice and be experts on the business.
“Without legal privilege protections, compliance falters because employees, directors, and leaders cannot speak freely and candidly about sensitive topics.”
Shielding facts
McDonald said: “This case is not about shielding facts from regulators.
“It is about whether the European Commission can strip legal advice of the confidentiality protections it has under US law, even when that advice was provided by US in-house lawyers in the US."
The ACC warns that allowing the EU to override US confidentiality rules, for advice given by US lawyers in the US, creates dangerous regulatory overreach, legal uncertainty, and potential operational complications for multinational companies.
In the United States, communications between a company's employees and its in-house lawyers are generally protected by attorney-client privilege.
This ensures that seeking and receiving legal advice remains strictly confidential.
External lawyers protected
However, under landmark EU case law (such as the AM&S Europe case), only communications with independent, external lawyers are protected.
The ACC has stepped in because it believes this dispute threatens how modern corporations operate:
- In-house lawyers are often the first people consulted when a company faces potential legal, regulatory, or compliance questions,
- The ACC argues that if in-house advice isn't confidential, employees and executives will be afraid to speak honestly with their legal teams. This lack of transparency can severely damage corporate compliance and ethics,
- The ACC emphasises that privilege only protects legal advice, not underlying business facts.
- A company cannot hide illegal behaviour simply by telling an in-house lawyer about it.
One of the most significant aspects of this case is geographic overreach:
- The documents in question were created by US-based in-house lawyers operating within the United States, where their communications are legally privileged,
- By attempting to force the disclosure of these documents, the European Commission is effectively trying to override US laws outside of Europe, the ACC believes,
- Multinational corporations are worried this sets a precedent where EU regulators can ignore local protections, creating legal uncertainty and forcing companies to rethink where they station their legal teams.
An exact oral hearing date has not yet been scheduled.
The European Commission will submit its defence, followed by a potential second round of written exchanges (reply and rejoinder) from Broadcom.
The court will also rule on whether to admit intervening parties like the ACC.