In its interim ruling of 3 August 2026, the EU General Court has confirmed that legal advice from in-house lawyers is not protected under EU legal privilege, even if it qualifies as privileged in the jurisdiction in which it was given. The court cancelled the temporary suspension of a Commission decision demanding disclosure of advice from U.S. in-house lawyers.
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Following its acquisition of VMware in 2023, Broadcom announced changes to VMware’s business model. Complaints were lodged with the EU Commission, alleging the changes were an abuse of a dominant position.
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In investigating the complaints, the Commission sent Broadcom a formal request for information concerning the development and EEA licensing of VMware products and services. Broadcom challenged the request on the basis that some of the requested documents were protected by U.S. attorney-client privilege and asked for the request to be suspended pending judgment on the substance of the appeal.
Advice from in-house lawyers is not privileged, regardless of jurisdiction
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The Court held that Broadcom had no arguable case justifying suspension of the request for information until final judgment:
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under EU law, legal professional privilege does not extend to communications with in-house lawyers (even if it would be privileged in the jurisdiction in which it was given);
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the Commission is entitled to demand documents stored abroad from companies doing business in the EU; and
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Broadcom had not shown that handing the documents over would cause it to lose privilege protection in the U.S. as U.S. law treats compulsory disclosures to foreign regulators as not waiving privilege.
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The Court found that the public interest in effective antitrust enforcement outweighed Broadcom’s concerns, particularly given that a suspension could encourage others to challenge information requests as a delaying tactic.
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The law is not changed by this ruling but it is a reminder to businesses in all jurisdictions that in-house legal advice is not protected in the context of an investigation by the Commission and may have to be disclosed if responsive to an information request or relevant to the subject matter of a dawn raid.
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Many called for this to be reconsidered as part of the Commission’s recent review of its antitrust enforcement procedures. However, officials published a briefing explaining that there is no reason for any change.
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Regarding the risk of waiver of privilege by disclosing in-house legal advice, the information request was made via a formal decision, with sanctions for non-compliance. The Court expressly recognised that responding to an information request by decision (amounting to a statutory demand) as opposed to a “mere” request, is commonly accepted as avoiding the risk of waiving privilege under U.S. law. The same approach is used to mitigate the risk of waiving English law privilege.
Whether external U.S. (and, post-Brexit, UK) counsel’s legal advice is disclosable remains untested
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The original 1982 EU judgment, which first laid out the principles for EU privilege, requires that legal advice must be from a lawyer entitled to practise in an EU Member State. However, this requirement has never been tested.
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The court did not consider this point as the Commission removed external legal advice from the scope of the information request to Broadcom, as an exception “based on considerations of international comity”. It is certainly notable that the Commission withdrew from fighting this point, but it cannot be considered a formal concession.
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