French Constitutional Council Validates Law on Confidentiality of In-house Legal Counsel’s Written Consultations

After years of controversy, the French Constitutional Council finally enacted the long-awaited law on the confidentiality of in-house legal counsel’s written consultations. However, the law ultimately provides for only limited and strictly regulated confidentiality, which is significantly different from the status enjoyed by in-house lawyers in many other countries.

COMPETITIVE GAP FOR THE FRENCH MARKET

The new law creates a French version of “legal privilege,” which is intended to eliminate the competitive and legal certainty gap that previously disadvantaged French companies compared to companies in other jurisdictions that already protect confidentiality for in-house legal counsel’s consultations with clients.

Further, the new law will provide protection against the extraterritoriality of foreign laws. As such, French companies will now be better positioned to compete on equal terms with their international competitors.

In-house legal counsel will be able to identify their company's vulnerabilities and address areas of risk without fear of self-incrimination, a prerequisite for any effective compliance program.

A CONTROVERSIAL LAW POSTPONED FOR YEARS

The confidentiality law has been debated in France since 2006. The proposal was initially to create a formal status for in-house lawyers, but this was ultimately abandoned in favor of confidentiality for in-house counsel’s written consultations. Due to opposition from the French Supervisory and Control Authorities (who feared that this confidentiality would compromise the effectiveness of their controls/investigations) and the French Bar (which viewed it as encroaching on its monopoly and weakening attorney-client privilege), this confidentiality was significantly narrowed.

It was only recently, on January 14, 2026, that the bill inserting Article 58-1 into Law No. 71-1130 of December 31, 1971—providing for limited confidentiality for in-house legal counsel’s written consultations—was finally adopted by the French Senate.

The law will become enforceable no later than the first day of the twelfth month following its promulgation. A decree by the French Council of State (Conseil d'Etat) will specify its implementing provisions.

This law was validated by the French Constitutional Council (Conseil constitutionnel) on February 18, 2026 (No. 2026-900 DC) with three reservations:

• The judicial review procedure applicable in the event of inspections or seizures by administrative authorities must also apply where those authorities exercise their statutory right of communication.
• Confidentiality shall not prevent the exercise of the prerogatives granted to an administrative authority by organic law.
• A judge may lift confidentiality if the consultation “is intended to facilitate or encourage the commission of fraud against the law or the rights of a third party.”

CONFIDENTIALITY IS LIMITED AND STRICTLY REGULATED

It is important to note that the law does not create full legal professional privilege for in-house legal counsels. Confidentiality is not attached to the individual (unlike outside counsels) but to the written internal consultations they produce.

Confidentiality applies only to consultations written by in-house counsel who hold a master’s degree in law and have completed ethics training.

The scope of confidentiality is as follows:

• Confidentiality applies only to civil, commercial, and administrative matters (criminal and tax matters are excluded).
• Confidentiality is limited to written consultations. It does not extend to underlying documents referenced in consultations, which may still be seized and reviewed by the French Supervisory and Control Authorities (ACPR, AMF, etc.).
• Confidentiality is limited to consultations clearly identified as “confidential.”
• Confidentiality is limited to consultations addressed to the company’s directors.

A judicial review procedure will allow the judge to verify the validity of the confidentiality applied to certain consultations where disputes arise and, if appropriate, to order the confidentiality to be lifted.