In a decision published this morning, the French Constitutional Court struck out the provisions introduced into the 'Justice Program Law' creating a new category of legal professional privilege attaching to certain legal advice given by in-house counsel. Currently, legal professional privilege in France only attaches to advice given by certain regulated professions (outside counsel, notaries and patent attorneys).
The Court held that the inclusion of these provisions in the law were a “legislative rider” (cavalier législatif), in breach of Article 45 of the Constitution. The Court found that this reform did not have a sufficient connection with the original purpose of the bill, which it construed narrowly.
The Court's decision does not address whether this new category of legal privilege complies with other constitutional requirements. The Members of Parliament who opposed the law argued before the Court that this new category of legal privilege would excessively restrict the powers of regulatory authorities and would obstruct the performance of their statutory duties, thereby undermining their ability to safeguard public order and prosecute offences.
An answer to this important question will need to wait for a fresh referral to the Court, if the Government re-adopts these same provisions after following the proper parliamentary procedure (which is to be expected).
For more information, see our client alert on the original proposal, authored by Daniel Kadar, Peter Rosher, Marianne Schaffner, Natasha Tardif, Ana Atallah, Benoit Charot, Clément Fouchard, Marc Lévy, Andrew Tetley, Nicolas Walker, Lucile Chneiweiss, Vanessa Thieffry, and Amani Lakhdhar.