Court of Justice of the European Union Archives

All communications between EU-qualified external lawyers and their clients benefit from Legal Professional Privilege

In a recent judgment, the European Court of Justice underlined the importance of Legal Professional Privilege in the EU and expanded its scope and nature as compared to the previous situation. The judgment underlines the importance of the fundamental right of respect of communications between a client and their lawyer, and provides reassurance to companies that irrespective of their scope or nature, such communications do not need to be provided to public authorities.

The background to the dispute

The case in question relates to EU legislation (Directive 2011/16/EU) that requires all intermediaries involved in potentially aggressive cross-border tax-planning that might lead to tax avoidance and evasion to report relevant practices to the competent tax authorities. The obligation also covers those who provide advice in that regard, although each EU Member State may grant lawyers (“lawyer-intermediaries”) a waiver from that obligation where it would breach Legal Professional Privilege (LPP) protected under national law. In such a situation, the lawyer-intermediary must nevertheless notify other intermediaries or the relevant taxpayer of their reporting obligations under the relevant legislation.

On that basis, the Flemish decree which transposed the Directive outlined that a lawyer-intermediary must inform other intermediaries that he or she could not fulfil the relevant reporting obligations him- or herself. Two lawyers’ professional organizations argued in front of the Belgian Constitutional Court that by providing even this information, lawyer-intermediaries would breach LPP. The European Court of Justice (ECJ) ruled on this issue on 8 December 2022 in response to a request for guidance from the Belgian Constitutional Court.

The ECJ judgment

The judgment first outlines a number of general principles about the sanctity of communications between lawyers and clients and the nature of LPP itself, even though this was not in itself the subject matter of the request for guidance from the Belgian Constitutional Court. It invokes both the EU Charter of Fundamental Rights as well as case-law of the European Court of Human Rights to highlight:

the confidentiality of correspondence between individuals and the strengthened protection in that regard to exchanges between lawyers and their clients;
that such protection covers not only the activity of defence but also legal advice;
the secrecy of such legal consultation must be guaranteed, both with regard to its content and to its existence;
individuals who consult a lawyer must therefore have a legitimate expectation that their lawyer will not disclose to anyone, without their consent, that they are being consulted.

Against this backdrop, the judgment goes on to answer the specific request for guidance in relation to the Directive. It holds that the obligation for a lawyer to notify other intermediaries of their obligations under the Directive is in itself an interference of the fundamental right of respect of communications between lawyer and client because those other intermediaries become aware of the identity of the notifying lawyer-intermediary, of their assessment that the arrangement at issue is reportable and of their having been consulted in connection with the arrangement

Since even fundamental rights are not absolute, the judgment then assesses whether such interference is justified in terms of whether it is necessary to achieve a general interest. It holds that the interference is not strictly necessary, inter alia because the reporting obligation of the Directive is clear and already applies to all relevant intermediaries without it being necessary for a lawyer to be involved.

The Court therefore holds that the obligation to notify set out in the Directive infringes the fundamental right of respect for communications between a lawyer and their client.

Implications of the judgment

Beyond the specific subject-matter of the case, the judgment is significant because of the importance it attaches to LPP and the expansion of its scope and nature. These issues were not the specific subject-matter of the request for guidance from the Belgian Constitutional Court and so it is noteworthy that the ECJ, sitting in its Grand Chamber composition, sought to highlight them. By importing provisions from the EU Charter of Fundamental Rights and jurisprudence of the European Court of Human Rights, the judgment significantly expands the nature of LPP in the EU. Under the previous case-law (e.g. the AM&S and Akzo cases), LPP covered only communications relating to the defence of a client or earlier communications related to the subject-matter of the investigation. In practice, this raised questions about which pre-investigation communications could benefit from LPP.

The judgment means that this question is now moot – there is no longer any potential temporal or subject-matter limitation to the notion of LPP in the EU since all communications between lawyers and clients are presumed to benefit from such protection. In practice therefore, clients will no longer be subject to any uncertainty about whether and if so which lawyer-client communications benefit from LPP in the EU. Clients continue to need to be aware that in the EU, in contrast to the situation in the United States, communications with in-house lawyers are not deemed to benefit from LPP and only EU-qualified lawyers benefit from LPP under the EU rules.

The following Gibson Dunn lawyers prepared this client alert: Nicholas Banasevic* and Christian Riis-Madsen.

Gibson Dunn’s lawyers are available to assist in addressing any questions that you may have regarding the issues discussed in this update. For further information, please contact the Gibson Dunn lawyer with whom you usually work, the authors, or any of the following leaders and members of the firm’s Antitrust and Competition practice group:

Antitrust and Competition Group:

Nicholas Banasevic* – Managing Director, Brussels (+32 2 554 72 40, nbanasevic@gibsondunn.com)

Christian Riis-Madsen – Co-Chair, Brussels (+32 2 554 72 05, criis@gibsondunn.com)

Ali Nikpay – Co-Chair, London (+44 (0) 20 7071 4273, anikpay@gibsondunn.com)

Rachel S. Brass – Co-Chair, San Francisco (+1 415-393-8293, rbrass@gibsondunn.com)

Stephen Weissman – Co-Chair, Washington, D.C. (+1 202-955-8678, sweissman@gibsondunn.com)

*Nicholas Banasevic is Managing Director in the firm’s Brussels office and an economist by background. He is not an attorney and is not admitted to practice law.

Attorney Advertising: The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.

Overshadowed in the media by the historic judgment of 3 February 2021 by the Administrative Court of Paris in the “Affaire du siècle” (the Case of the century), a ruling by the Versailles Administrative Court of Appeal (the Court) on 29 January 2021 could also result in a historic ruling by the Court of Justice of the European Union (the CJEU). Indeed, upon referral by the Court, the CJEU will be called upon to rule on the existence of a right to breathe clean air and on the liability incurred by the Member States of the European Union in the case of disregard of their obligations in terms of air quality (Case C-61/21).

I. Context of the ruling rendered by the Court

Under Directive 2008/50/EC of 21 May 2008 on “ambient air quality and cleaner air for Europe” (the Directive), Member States must establish zones and agglomerations throughout their territory in which air quality is assessed (Article 4).

Article 13-1 of the Directive requires Member States to ensure that levels of fine particulate matter (PM10), carbon monoxide or nitrogen dioxide (NO2) do not exceed limit values set out in an annex.

Article 23-1 of the Directive provides that where these limit values are exceeded by levels of pollutants in ambient air, Member States must, in the given zone or agglomeration, adopt “air quality plans”. If the limit values are exceeded after the deadline for their application, the air quality plans provide for appropriate measures to ensure that the period of exceedance is as short as possible.

At the end of 2019, following an action for failure to fulfil obligations brought by the European Commission, the Court of Justice of the European Union ruled that France had failed to fulfil its obligations under Articles 13(1) and 23(1) of the Directive with regards to NO2 for several French regions, including the Paris region (CJEU, 24 October 2019, case C-636/18). On 30 October 2020, the European Commission announced that it would bring a new action against France before the CJEU for failure to fulfil obligations , it being specified that the failures this time deal with the excessive level of PM10 in the air.

For its part, the Conseil d’Etat (Council of State, France), the highest administrative court in France, had already ruled in 2017 that, given the persistence of observed exceedance of PM10 and NO2 concentrations in the air, the air quality plans for certain areas, including the Paris region, had to be considered insufficient with respect to the obligations and thresholds set by the Directive. The Conseil d’Etat had then enjoined the State to take the necessary measures to bring PM10 and NO2 concentrations below the limit values (CE, 12 July 2017, No. 394254). In a decision dated 10 July 2020, the Conseil d’Etat considered that the French State had not complied with the injunctions requested in the decision of 12 July 2017, and imposed a €10 million penalty on them if they did not justify having taken the required measures within six months of the decision (CE, ass., 10 July 2020, No. 428409). In light of the publicly available information, the Conseil d’Etat should soon rule on whether the French State has finally fulfilled its obligations.

It is in this context that the Court, sitting in plenary session, was called upon to rule on the action for damages brought by an applicant, resident of the Paris region, who attributed his various allergies to air pollution. The applicant considered that the deterioration of the air quality resulted in particular from the disregard by the French authorities of the obligations set by Articles 13(1) and 23(1) of the Directive.

II. Reasoning steps followed by the Court

It has been consistently held that “the principle of State liability for loss and damage caused to individuals as a result of breaches of [Community] law for which it can be held responsible is inherent in the system of the [Treaty on the Functioning of the European Union]” (CJEU, 5 March 1996, cases C-46/93 and C-48/93).

The CJEU also recalls that a right to reparation is recognized by European law if the following three conditions are met:

the rule of law infringed must be intended to confer rights on individuals;
the breach must be sufficiently serious, it being specified that this is the case if the breach has persisted despite a judgment by the CJEU finding the infringement in question to be established;
there must be a direct causal link between the breach of the obligation resting on the State and the damage sustained by the injured parties.

In the present case, since it was seized of a claim for damages based on the breach of the Directive, i.e. of a norm of European law, the Court had to verify whether the three conditions mentioned above were met.

In order to determine whether the first condition had been met, the Court had first to decide whether Articles 13(1) and 23(1) of the Directive, which the applicant claimed had been disregarded, gave him a “right”. In other words, the Court had to determine whether these Articles conferred a “right to breathe clean air” eligible of giving rise to a compensation claim.

As early as 2014, the CJEU had indicated that Articles 13(1) and 23(1) allowed “persons directly concerned by the limit value being exceeded” to obtain, before the national authorities and courts, the establishment of an air quality plan in accordance with the requirements of Article 23 (CJEU, 19 November 2014, case C-404/13). It is, moreover, this right that was implemented by the Conseil d’Etat in the 2017 and 2020 decisions outlined above.

The Court probably considered that the right thus available to individuals to compel Member States to implement the obligations laid down by the Directive did not necessarily imply the recognition for their benefit of a “right to breathe clean air”, the disregard of which is likely to give rise to an action for damages.

Since the answer was uncertain and the issue was related to the scope of a European norm, the Court chose to refer two questions to the CJEU for a preliminary ruling on Articles 13(1) and 23(1) of the Directive in order to obtain the appropriate interpretation of these Articles.

The first question is relative to whether Articles 13(1) and 23(1) of the Directive give individuals, in the event of a sufficiently serious breach by a Member State of the European Union of the obligations arising therefrom, a right to obtain from the Member State in question, compensation for damage to their health which has a direct and certain causal link with the deterioration of air quality.

If the answer to the first question is affirmative, the Court then asked the CJEU to specify the conditions for the opening of this right, in particular with regards to the date on which the existence of the breach attributable to the Member State in question must be assessed.

III. Possible consequences of the Court’s ruling

If the CJEU were to answer the first of the questions asked by the Court in the affirmative, it would then be for the Court to determine whether the other two conditions for the French State’s liability to be characterized are met.

Insofar as France has already been subject of a breach judgment for failure to comply with its obligations with respect to NO2 (CJEU, 24 October 2019, cited above), the condition relating to the sufficiently serious breach of a right conferred on individuals does not seem to pose any particular difficulty.

It will then be up to the Court to assess whether there is a direct causal link between the violation and the damage claimed by the applicant, it being specified that this demonstration will depend on the answer given by the CJEU to the second question, namely from what date the existence of the violation attributable to the Member State in question must be assessed, and will probably require recourse to a medical expert opinion.

The recognition of a right to breathe clean air likely to be subject of an action for compensation would very probably constitute a strong constraint weighing on the Member States of the European Union. In this respect, it should be emphasized that France is far from being the only country in the European Union to have been condemned for failure to comply with the obligations set out in Articles 13(1) and 23 of the Directive: Italy has been condemned for systematic and persistent exceeding of the PM 10 limit values (CJEU, 10 November 2020, case C-644/18), the United Kingdom and Germany have been condemned in the same way, but for N02 (CJEU, 4 March 2021, case C-664/18 and CJEU, 3 June 2021, case C-635/18). The question of a possible compensation claim based on the disregard of the right to breathe clean air could thus have a repercussion in all of the European Union States.

The following Gibson Dunn attorneys assisted in preparing this client update: Nicolas Autet and Grégory Marson.

Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding these developments. Please contact the Gibson Dunn lawyer with whom you usually work, the authors, or any of the following lawyers in Paris by phone (+33 1 56 43 13 00) or by email:

Nicolas Autet (nautet@gibsondunn.com)
Grégory Marson (gmarson@gibsondunn.com)
Nicolas Baverez (nbaverez@gibsondunn.com)
Maïwenn Béas (mbeas@gibsondunn.com)

Attorney Advertising: The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.