1. Abstract

On 23 February 2026, Law n°2026-122 on the confidentiality of consultations written by in-house lawyers was enacted, amending the 31 December 1971 Law reforming certain judicial and legal professions. Two days later, it was published in the “Journal Officiel”[i]. It will come into force no later than twelve months after its promulgation, under the terms of a decree whose content is not yet known.

The delay between promulgation and the law’s entry into force does not prevent France from becoming – at last – the ninth EU Member State to adopt a mechanism for protecting in-house lawyers’ advice.

Has this legislative saga reached its final chapter?

While some observers consider this delay to be very long, it is in line with the legislative process that led to the law, which took no less than a decade and numerous heated debates to be finalised.

This delay is all the longer given that – in the absence of the implementing decree, which may be issued within a maximum period of one year from 23 February 2026 – to date, consultations with in-house lawyers are not confidential… since the law has not yet entered into force!

This law represents the outcome of a lengthy and rather chaotic legislative process, marked by numerous unsuccessful attempts and recurring criticism of its constitutionality.

In 2023, the French Constitutional Council was required to rule on the constitutionality of a former bill. The same scenario occurred in 2026: on 18 February 2026, the French Constitutional Council was asked to rule on the last bill and declared it to be in accordance with the French Constitution.

Even though the brand-new Law of 23 February 2026 stipulates a significant number of rigorous conditions and has a limited scope of application, it has, nevertheless, attracted severe criticism from certain legal professionals and some independent authorities.

At a time when the implementing decree is now being drafted (or about to be), this law continues to be subject to debates and criticisms. While the precise contours of the confidentiality of in-house lawyers’ opinions remain to be determined by the future decree, it is nevertheless possible, as of today, to comment on the principles laid down by the recent law.

A French-style regime

The confidentiality regimes for in-house lawyers’ legal advice within the EU are not uniform. Also, the French regime differs substantially from those in place in the UK and the US.

These disparities are likely associated with the goals pursued by the protection, which differs from a country to another. In France, this law aims not only to enable the development of compliance law, where lawyers are increasingly exposed to these issues within the companies’ world, but also to protect French economic sovereignty in light of the growth of international competition[ii].

2. Context: the genesis of the law and its main goals

The umpteenth legislative iteration…

The 23 February 2026 Law constitutes the latest in a series of measures designed to establish a framework within France that ensures the protection of in-house lawyers’ professional advice.

In pursuit of the stated goal of strengthening France’s economic attractiveness, the French Senate has previously ruled on this issue on two previous occasions, adopting similar measures:

• During the review of the Ministry of Justice’s 2023-2027 policy and planning law proposal, the French Constitutional Council raised concerns about the confidentiality provisions. They stated that these provisions were inappropriate and should be reconsidered, as they were labelled as ‘legislative riders’.
• The second time was with the law proposal aimed at guaranteeing the confidentiality of legal consultations by in-house lawyers. This law proposal was widely adopted by the French Senate in 2024 and is now once again under consideration following amendments introduced by the French National Assembly.

… pursuing two goals….

In 2026, the objectives of those advocating for the confidentiality of in-house lawyers’ legal advice were as follows:

• To facilitate the growth of compliance law by ensuring legal professionals are trained to recognise and address the increasing prevalence of these issues within the corporate sector.
• It is vital that France strengthen its economic position, protect its economic sovereignty and adapt to international competition, as it lags behind a number of other European Union Member States (Germany, Belgium, Spain, Greece, Hungary, Ireland, the Netherlands and Portugal).

… allowing users to join an exclusive group…

Following the entry into force of the French law, the principle of confidentiality is to be enshrined in nine Member States representing 40% of the Union’s overall population.

… but fuelling much criticism…

While the reform has been met with enthusiasm by some, it has also faced significant criticism from legal professionals and several independent authorities.

Legal professionals, particularly lawyers (both barristers and solicitors), have highlighted a perceived disparity in terms of equality between their own status and that of in-house lawyers. The proposed confidentiality regime was viewed as unbalanced, but this argument was rejected by the French Constitutional Council.

Furthermore, opponents of confidentiality for in-house lawyers consider it to be an inappropriate protection at a time when the protection of correspondence between lawyers and their clients has been reduced to a mere shadow of its former self following decisions by the Criminal Chamber of the Court of Cassation. The latter only grants legal privilege to correspondence covered by professional secrecy in defence and counsel and relating to the ‘exercise of the rights of defence’.[iii]

Concerns have also been raised by some independent authorities (Autorité de la concurrence, Autorité de contrôle prudentiel et de résolution and Autorité des marchés financiers) regarding the confidentiality of their procedures and investigations.

The concerns raised have been addressed, with specific provisions of the law being subjected to scrutiny and multiple amendments already proposed to address these concerns.

3. A confidentiality subject to restrictive, numerous and blurred conditions

The law of 23 February 2026 sets out five cumulative conditions for advice provided by in-house lawyers to be confidential:

• The author must be an ‘in-house lawyer’ as defined by law, or a member of the said lawyer’s team under his/her supervision:
  • The ‘in-house lawyer’ must hold a master’s degree in law or ‘an equivalent French qualification’[iv], or meet the additional conditions set out in the article following the new article 58-1 of the law n°71-1130 of the 31^st December 1971.
  • The attentive observer will have noticed that the meaning of ‘equivalent French qualification’ is rather unclear.

• It is essential that they provide proof of training in ethical rules. No further details are given at this time, but a decree will provide further clarification.

• The advice must be a ‘legal consultation’ as defined by law. This means that it must be the result of a personalised intellectual service involving the provision of an opinion or advice based on the application of a rule of law. Should we assume that AI is being targeted?

• It is imperative that the legal advice explicitly states the terms “confidentiel – consultation juridique – juriste d’entreprise” (sic)[v] and is granted a classification of the highest priority in the company’s files (two conditions in one).

• Only legal advice intended for management, administrative or supervisory bodies may be considered confidential. This means that advice not addressed to the latter are not covered.

On the one hand, there are numerous conditions, and on the other hand, the abstract nature of certain terms maintains ambiguity, especially when they are subject to interpretation by courts.

4. The (numerous) limits to confidentiality: exceptions and mitigating factors

The confidentiality afforded by law to the opinions of in-house lawyers is not absolute…

There are two situations in which the law excludes confidentiality as a matter of principle:

• It is excluded ‘in the context of criminal or tax proceedings’.

• confidentiality is unenforceable in the event of an investigation initiated by the European Union authorities: legal advice provided by in-house lawyers on antitrust are unlikely to be confidential.

Therefore, the only consultations that are covered by confidentiality and cannot be seized or disclosed are those that are seized ‘in the context of civil, commercial or administrative proceedings or litigation’.

However, this protection is not absolute.

… and confidentiality may be lifted by the judge

It is imperative to understand that fulfilling all the aforementioned criteria does not inherently ensure confidentiality. The competent courts may lift confidentiality in accordance with a procedure specified by law.

In cases where the seizure of a consultation is deemed necessary, it will be carried out by a judicial officer. The seizure may be challenged:

• Before the liberty and custody judge in the context of a search and seizure operation.
• Before the president of the court that ordered the investigative measure in the context of a civil or commercial dispute.

5. A brief overview of the confidentiality of legal opinions issued by in-house lawyers around the world

Regimes protecting in-house lawyers’ communications are now emerging around the world. However, this serves as a reminder that significant disparities exist, and that European Union law only protects communications between lawyers and their clients.

It is the position of both the European Commission and the European Court of Justice that the protection should be limited in scope to communications exclusively between lawyers and their clients.

In its Akzo Nobel[vi] judgment, supplemented by the Ordre des avocats du Barreau du Luxembourg judgment, the ECJ stated that only consultations with external lawyers in the context of defence or advisory activities are protected by professional secrecy[vii].

In its Competition Policy Brief entitled Legal professional privilege in competition law investigations: has the status of in-house lawyers changed?[viii]  The European Commission concurred with the Court’s position on the matter, considering it unnecessary to extend confidentiality to the opinions of in-house lawyers.

Protections therefore vary greatly from one country to another.

Currently, nine Member States have implemented measures to protect legal advice with in-house lawyers. However, the level of protection varies between Member States. For example[ix]:

• In Belgium, the confidentiality of advice given by in-house lawyers to their employers in the course of their legal advisory activities is well-established[x].

• In Germany, a distinction is made between civil and criminal cases: while in-house lawyers may refuse to testify or provide documents in accordance with the confidentiality of their communications, in criminal cases, they do not enjoy the same protection as external lawyers and must accept the seizure of documents exchanged with their employers.

• In Greece and Ireland, legal opinions provided by solicitors and in-house lawyers enjoy the same level of protection.

• In Portugal, in-house lawyers are subject to the same professional privilege regulations as external lawyers, except for communications pertaining to ongoing criminal investigations.

• In Spain, according to Spanish law and case law, protection is generally extended to in-house lawyers[xi]. Besides, in-house and external lawyers enjoy the same general principles of freedom and independence, which tends to undermine the distinction between the two[xii]. However, the Spanish Competition authority does not extend any protection to communications made by in-house lawyers during its inspections.

Although the content of confidentiality may vary, each Member State has the same limitation as French law imposes with regard to investigations by European Union authorities.

Such differences can present challenges, given that the position of the Union differs from that of the Member States. Consequently, the uniformity of legal rules is not guaranteed in this area.

Other EU countries, such as Italy and Austria, have yet to address this principle.

In England and Wales, communications between in-house solicitors and employees are protected, regardless of their content, whether they relate to litigation or legal advice.

In the United States, the communication of legal advice by in-house solicitors to company employees is protected.

In both cases, it can be said that legal privilege in these two countries is much broader than in the European Union.

6. ­An appropriate text? Towards amendments prior to its implementation…

This law has not been universally endorsed in France, and there are already calls for amendments, including one that would render confidentiality unenforceable against the three French independent authorities which strongly fought the bill and are now strongly opposed to the law (Autorité de la concurrence, Autorité de contrôle prudentiel et de résolution and Autorité des marchés financiers).

The law has been enacted and published in the Official Journal, but further details are pending… pending the implementing decree, which is expected within a maximum of twelve months.

[i] Légifrance – Publications officielles – Journal officiel – JORF n° 0048 du 25/02/2026

[ii] Report of the French Senat n°260, January 2026

[iii] Cour de Cassation, Criminal Chamber, 13 January 2026, nbr. 24-82.390

[iv] Art. 2  « Les personnes qui sont titulaires d’une maîtrise en droit, les étudiants qui ont validé la première année d’une formation de deuxième cycle conduisant au diplôme national de master en droit ou les détenteurs de l’un des titres ou diplômes reconnus comme équivalents par arrêté conjoint du ministre de la justice et du ministre chargé des universités qui justifient, à la date d’entrée en vigueur de la présente loi, d’au moins huit ans de pratique professionnelle au sein du service juridique d’une ou de plusieurs entreprises ou administrations publiques sont considérés, pour l’application de l’article 58-1 de la loi n° 71-1130 du 31 décembre 1971 portant réforme de certaines professions judiciaires et juridiques, comme titulaires d’un master en droit »

[v] ‘Confidential – Legal advice – In-house lawyer’

[vi] ECJ, 14 September 2010, C-550/07, Akzo Nobel Chemicals Ltd.

[vii] ECJ, 26 September 2024, C-432-23, Ordre des avocats du Barreau de Luxembourg

[viii] Policy Brief

[ix] As was pointed out during parliamentary debates in France

[x] Article 5 of the law of the 1^er of March 2000 establishing the ‘Institut des juristes d’entreprise’

[xi] Administrative Court nº8 of Madrid Ruling num. 24/2015

[xii] Article 39 of the General Regulation of the Legal Profession (Estatuto General de la Abogacía)