Legal privilege for in-house counsels struck down by the Constitutional Council

In its decision No. 2023-855 DC of 16 November 2023, the Constitutional Council (Conseil Constitutionnel) censured the article of the Ministry of Justice Orientation and Programming Bill for 2023-2027 that recognized legal privilege for in-house counsels (juriste d’entreprise). 

Following its Parliamentary approval on last 11 October, this provision was referred to the Constitutional Council by members of Parliament who notably claimed that it did not guarantee sufficient and effective means to regulatory authorities such as the French Financial Regulation Authority (Autorité des Marchés Financiers), the French Competition Authority (Autorité de la Concurrence) and the French Anti-Corruption Agency (Agence Française Anticorruption) to carry out their duties. 

The Constitutional Council did not rule on these arguments, considering that this provision was a “legislative rider” (cavalier législatif), i.e., that it had been introduced by way of amendment into a bill with which it had no connection, even indirectly. The legal privilege will therefore not be introduced into French law in this way. 

This conclusion, although disappointing, is not surprising. However, we expect that a new legislative initiative will seek to reintroduce this legal privilege, in an identical or similar form, into French law. 

For more details on the differing opinions on the legal privilege “à la française” and its potential impact on the activities of independent administrative authorities, please refer to our latest article.