In-house counsel privilege upheld by Belgian Court of Cassation

6 February 2015

In a judgment dated 5 March 2013, the Brussels Court of Appeal held that legal advice provided by in-house counsel (members of the Belgian Institute for in-house counsel, "Instituut voor bedrijfsjuristen"/"Institut des juristes d'entreprise") is confidential. The judgment was delivered in the context of a dawn raid that was carried out by the Belgian Competition Authority at the premises of Belgacom. The Brussels Court confirmed that in-house counsel advice (including requests to prepare such advice) could not be seized by the Belgian Competition Authority in the context of a competition investigation.

The Belgian Competition Authority subsequently petitioned the Belgian Court of Cassation ("Hof van Cassatie"/"Cour de Cassation") to reverse that ruling. By judgment dated 22 January 2015, the Court of Cassation dismissed the petition (except on a point not relevant to the issue of in-house counsel privilege). As a result, it is now settled that legal advice prepared by members of the Belgian Institute for in-house counsel cannot be accessed and/or used against the employer of the author of the advice. This privilege does not, however, apply in the context of competition investigations conducted by the European Commission.

Hans Gilliams, chair of our competition practice, served as counsel to Belgacom in connection with these proceedings.