ARTICLE
24 January 2025

Protecting Legal Professional Privilege: Insights From 2024's Landmark Judgments

At the heart of this year's legal discourse was the critical question: do requests from authorities override legal privilege, or do such actions infringe upon fundamental human rights...
Malta Litigation, Mediation & Arbitration

The year 2024 has been a pivotal turning point for the legal profession, particularly in the realm of legal professional privilege.

At the heart of this year's legal discourse was the critical question: do requests from authorities override legal privilege, or do such actions infringe upon fundamental human rights, specifically Article 8 of the European Convention on Human Rights and Article 7 of the Charter of Fundamental Rights of the European Union?

In July, the Court of Justice of the European Union (CJEU) tackled this issue in the case of Belgian Association of Tax Lawyers and Others v Premier ministre/Eerste Minister (C-623/22).

The Court was asked to determine whether, under Article 7 of the Charter, the notification obligations under Article 8ab(5) of the amended Directive 2011/16 could validly apply to intermediaries who are not lawyers but are bound by legal professional privilege under national law. The CJEU concluded that while certain non-lawyer professionals may provide legal representation authorized at the national level, they do not possess the distinct characteristics attributable to lawyers. Consequently, legal professional privilege cannot be extended to these individuals.

This judgment rightly emphasised that legal professional privilege protects not only the activities of defence, but also legal advice. Such protection is rooted in the obligations lawyers undertake in their fundamental role within a democratic society – defending litigants. Due to the unique nature of the legal profession, the CJEU has consistently held that obligations to notify, when imposed on lawyers, infringe Article 7 of the Charter.

A few months later, in F and Ordre des avocats du barreau de Luxembourg v Administration des contributions directes (C-432/23), the CJEU ruled in favour of a Luxembourg-based law firm, reinforcing the protection of legal professional privilege as enshrined in Article 7 of the Charter. The Court emphasised that lawyers' communications must remain confidential, regardless of the legal area, except in exceptional circumstances.

The Court also held that the broad nature of the tax authority's request for information was disproportionate and breached the right to confidential legal communication. The application of the Directive must be proportionate and justifiable by law.

Furthermore, while the Court confirmed that the Directive itself does not violate the EU Charter, it stressed that domestic laws enforcing the Directive must align with EU fundamental rights. National laws cannot mandate the disclosure of all legal advice documentation when such compulsion clearly breaches protected rights by failing to safeguard lawyer-client privilege.

Most recently, the European Court of Human Rights (ECtHR) addressed the boundaries of legal professional privilege in Kock and Others v. Germany (Application numbers 1022/19 and 1125/19). The Court found that Audi lacked a direct lawyer-client relationship with the law firm in question, and thus, legal professional privilege could not extend to the documents and data collected. Since no legal consultancy agreement existed, the material related only to a third party, not to a client.

Whilst Audi was a subsidiary company of Volkswagen (VW)—the parent company which did have a binding legal consultancy agreement in place with the law firm in question—the legal protection awarded to such a relationship, including legal professional privilege, was solely limited to the client, VW, and not its subsidiaries.

The developments of 2024 underscore the complex nature of legal professional privilege, its limitations, and its critical role in safeguarding fundamental rights. These cases collectively highlight the importance of proportionality, clear legal frameworks, and the intrinsic value of confidentiality in legal representation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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