What is protected by legal professional privilege?
Legal professional privilege applies to lawyers (Avocat / Advocaat) who are members of the Flemish (OVB) or the French and German Bar (OBFG) in Belgium. Legal professional privilege is not limited in time and is also applicable during any pre-trial stage.
Any information received by a lawyer (acting in their capacity as lawyer) or obtained in the context of the provision of legal advice, legal proceedings or any dispute in general, or in matters determining the client’s rights and obligations, are protected by legal professional privilege. This may include emails, correspondence, notes, advice, or preparatory documents.
Are communications with in-house counsel protected by legal professional privilege?
Belgian law recognises legal professional privilege for in-house counsel. Under Article 5 of the Act of 1st March 2000 creating the Belgian Institute for In-house counsel (Institut des Juristes d’Entreprise / Instituut voor Bedrijfsjuristen), advice given by in-house counsel, for the benefit of the counsel's employer and in the framework of activity as legal counsel, is confidential.
This was confirmed by the Brussels Court of Appeal in a judgment of 5 March 2013. The Court of Appeal held that in accordance with Article 5 of the Act of 1st March 2010 read in conjunction with Article 8 of the ECHR (right to privacy), the Belgian Competition Authority could not seize documents containing legal advice provided by in-house counsel. The Court of Appeal held that legal professional privilege also covered internal requests for legal advice, correspondence relating to the legal advice, draft opinions and preparatory documents.
How is legal professional privilege waived?
The question of whether legal professional privilege can be waived has been often debated: whereas some commentators consider that the core principle of legal professional privilege can never be waived, as it is an obligation of public policy, others consider that legal professional privilege belongs to the client and may therefore be waived.
Past judgments have held that legal professional privilege may be overridden in certain cases in favour of the client’s right of defence. It is generally accepted that a lawyer should or is entitled to set aside legal professional privilege if a higher value (overriding public interest grounds or state of necessity (Article 71 of the Belgian Criminal Code)) is at stake which can only be safeguarded through disclosure of the privileged information.
Legal professional privilege in the context of merger control
Legal professional privilege has not been clearly defined within the context of merger control in Belgium.