The Broadcom Case: The Limits of Legal Professional Privilege for In-House Counsel
In August 2026, the President of the General Court of the European Union issued an important interim order (Case T-280/26 R), dismissing an application by Broadcom Inc. and VMware International for interim measures. The applicants sought to suspend the European Commission's request, made in the course of an investigation into a potential abuse of dominance, requiring the production of internal communications of an in-house lawyer qualified in a third country (specifically, the United States).
The central issue was whether documents created by in-house lawyers qualified outside the EU benefit from legal professional privilege (LPP) under EU law. The applicants argued that the Commission's request to disclose in-house legal advice located outside the EU violated public international law, the principle of proportionality and international comity.
The President of the General Court emphasised that an employment relationship creates a relationship of subordination which, by its very nature, precludes the degree of independence required for legal professional privilege under EU law. He further held that the applicants could not rely on the law of a third country to prevent the application of EU law, even where that third country's legal system affords broader protection to legal professional privilege. Even if the risks arising under third-country law were, in exceptional circumstances, to be weighed against the need to comply with EU law, the applicants failed to demonstrate that compliance with the Commission's request would, under US case law, amount to a waiver of legal professional privilege in the United States.
Moreover, should the applicants ultimately succeed in the main proceedings, communications with in-house lawyers qualified to practise in a third country will be removed from the Commission's file. Accordingly, the conditions for granting interim measures were not met.
For businesses operating in the Czech Republic, the order provides important guidance and, at least until the General Court delivers its judgment on the merits, confirms the clear distinction between internal and external legal advice. As noted in the Competition Policy Brief, the Czech Republic follows the approach adopted in most EU Member States, where communications with in-house counsel are not protected by legal professional privilege in competition investigations (unlike, to some extent, Belgium, Ireland, Hungary, the Netherlands and Portugal).
The Broadcom order expressly confirms that an employment relationship constitutes an obstacle to the recognition of legal professional privilege under EU law.
“Neither reliance on the law of a third country to protect the confidentiality of documents nor their storage on servers outside the EU can shield in-house legal communications from disclosure. Companies must therefore exercise caution, as any legal opinions or emails from employed in-house counsel may be ‘seized’ and used as evidence in competition investigations,” comments BBH Partner Ivana Halamová Dobíšková on the General Court’s decision.
The order also suggests that legal professional privilege may not automatically extend to communications with external lawyers qualified outside the EU. Under EU law, the strongest protection remains reserved for legal advice provided by independent external lawyers admitted to practise within the European Union.
Author: Ivana Halamová Dobíšková, Partner