The importance of obtaining legal advice from external Counsel to benefit from legal professional privilege under EU law

If your business or corporate group supplies goods or services in the European Economic Area (the “EEA”), take note of an important judgment of the EU General Court (the “Court”). On 3 August 2026, in Case T-280/26 R Broadcom Inc and VMware International Unlimited Company v European Commission, the Court dismissed an application for interim measures suspending a European Commission (the “Commission”) decision requiring the disclosure of documents (the “Order”). The documents in question included material held outside the EU and material claimed to be protected by legal professional privilege under the law of the United States.

The Order serves as a timely reminder that legal professional privilege in an EU competition investigation is determined under EU law, not by the law of the country in which advice was given or documents are stored. It also illustrates why businesses should consider involving independent external Counsel at an early stage when seeking sensitive advice on EU competition law.

Broadcom has filed an appeal before the European Court of Justice (ECJ) challenging the Order.

Key takeaways for businesses

The Commission’s decision was a request for information adopted under Article 18(3) of Regulation 1/2003[1] in the Commission’s investigation into VMware software licensing.
On the Court’s prima facie assessment, requests for information may extend to documents located in a third country, because such requests do not involve coercive measures by Commission officials on foreign soil.
Accordingly, there are good reasons to conclude that the location of documents requested under a request for information does not, of itself, provide protection from disclosure.
The Court confirmed that exchanges within a company or group involving in-house lawyers fall outside the scope of legal professional privilege under EU law.
That position was applied to internal communications with in-house lawyers qualified in a third country, notwithstanding that the advice may be privileged (and protected from disclosure) in the jurisdiction in which it was given.
The Court’s judgment underlines the benefits of obtaining advice from external Counsel, as this advice may be protected from disclosure by legal professional privilege under EU law.
The Court also reiterated the case law under which legal professional privilege under EU law applies to communications with lawyers entitled to practise in an EEA Member State.
The Order is an interim order based on a prima facie assessment, does not prejudge the outcome of any annulment action, and, in light of the appeal to the ECJ, the issues considered in the Order remain subject to further judicial scrutiny.

Background

Broadcom Inc (“Broadcom”) is a company governed by the law of the United States. VMware International Unlimited Company (“VMware International”) is an entity within the Broadcom group, registered in Ireland, which carries out licensing of VMware goods and services within the EEA (Broadcom and VMware International together being the “Applicants”). The Commission’s investigation concerns allegations that Broadcom is abusing a dominant position in several markets for virtualisation software, in particular by tying or bundling VMware products and services, charging abusive prices, limiting interoperability and applying other unfair contract terms and negotiating practices increasing customer lock in.

On 26 February 2026, the Commission adopted a decision under Article 18(3) of Regulation 1/2003 requiring the Applicants to provide specified information (the “Decision”). The Decision stated that all documents covered by the request which do not fall under EU rules governing legal professional privilege must be disclosed, even if they may be privileged in other jurisdictions.

Broadcom requested the Commission to apply legal professional privilege under EU law to communications with all external lawyers and all categories of legal advice and related attachments, and to exclude documents protected by legal professional privilege under US rules. The Commission replied that it could exceptionally agree to the withholding, at that stage of the investigation, of all communications to and from outside Counsel containing legal advice, and related attachments, based on considerations of international comity. In May 2026, the Applicants brought an action for annulment and, separately, an application for interim measures. The Commission then adopted a decision amending the Decision (the “Amending Decision”), formally removing from the scope of the request communications with all independent external lawyers, including those qualified to practise in third countries, that contain legal advice and related attachments.

The effect of the Amending Decision was that the interim application was narrowed. There was no longer any need for the Court to adjudicate on the request for suspension so far as it concerned independent external lawyers.

Two aspects of the Order will be of most interest to businesses, and each is considered below: the Commission’s ability to require disclosure of documents held outside the EU in a request for information, and the treatment of communications between a business and its own in-house lawyers following such a request.

The Commission’s power to require documents held outside the EU

The Court found that the Commission may require a business to disclose documents that are held outside the EU, and that the place where a business keeps its documents does not, of itself, protect them from disclosure.

The Applicants argued that the ECJ had never examined the Commission’s jurisdiction to require the disclosure of documents located outside the EEA. The Court found that requests for information, even where they require disclosure of documents located in a third country, do not involve coercive or implementing measures by Commission officials on foreign soil. It noted that in order to justify the Commission’s jurisdiction under public international law, it is sufficient to establish either an immediate and substantial effect within the internal market or the EEA, or implementation in the EU.

On that basis, the Court decided that the Commission should be able to seek information from undertakings located outside the EU, where this is necessary to determine whether their conduct breaches EU law and may have a substantial impact on the internal market. It observed that, without such a right, the Commission would not be able to carry out its investigations effectively, and that entities established in the EU may be encouraged to store data outside the EU in an attempt to thwart those investigations.

The Court noted that the concept of an undertaking designates an economic unit even where that unit consists of several legal persons. It followed that, even if the Commission had addressed the request only to VMware International, the obligations of Broadcom, its parent company, would have been the same. Accordingly, there are good reasons to support the view that an EU presence within a corporate group may be sufficient to engage the obligations of the wider group to disclose documents in response to a request for information, including documents held outside the EU.

For businesses, the practical consequence of the Order is that a document is unlikely to fall outside the scope of a Commission request for information simply because it is held by a group company outside the EU, and which group company receives that request may make little difference to what has to be disclosed. This is particularly relevant for multinational groups whose legal, commercial and strategic documents may be created or stored outside the EEA but relate to conduct that may affect EEA markets.

Communications between in-house lawyers and their employer

The Court found that legal advice and related attachments from a business’s own in-house lawyers is not protected from disclosure in a Commission investigation, wherever those lawyers are based and whatever the position under the law of their own country.

The Court confirmed that the requirement for legal professional privilege that the lawyer be independent of the client means the absence of any employment relationship between the lawyer and the client, with the result that under EU law legal professional privilege does not cover exchanges within a company or group with in-house lawyers. It noted that an in-house lawyer, despite enrolment with a Bar or Law Society and the professional rules to which that gives rise, does not have the same degree of independence from the employer as a lawyer in an external firm has in relation to a client. The Court further held that the scope of protection against disclosure to the Commission is a matter of EU law. On a prima facie basis, allowing the domestic laws of non-EU jurisdictions to determine whether communications with in-house lawyers admitted in those jurisdictions are protected from disclosure would risk undermining the uniform and consistent application of EU law. Accordingly, the validity of the Decision fell to be assessed by reference to EU law rather than the laws of third countries.

The Court also addressed legitimate expectations, that is to say whether the Applicants could rely on an established position as to how their communications would be treated. It accepted that the Applicants might have expected communications, including communications from in-house lawyers, to remain confidential under US law, but held that such an expectation would apply only to requests from US authorities. US law could not be relied on to give rise to a legitimate expectation under EU law.

In short, on the Court’s prima facie assessment, a business should expect that material prepared by its internal legal team may not be protected from disclosure following a request for information from the Commission, and that the recognition of legal professional privilege by the courts of the country in which that team is based will not alter the analysis under EU law. Accordingly, businesses should think carefully about how sensitive EU competition law advice is obtained, recorded and circulated.

An interim order, not a final judgment

The Applicants’ application to suspend the Decision was refused, and a temporary suspension of the Decision that the Court had granted in May 2026 was lifted. The Court held that Broadcom had no arguable case to justify suspension of the request for information until final judgment. Interim proceedings of this kind decide only whether a decision should be paused while a wider challenge is heard. The Order therefore does not decide whether the Decision was lawful, and the Court expressly stated that it was not prejudging the main proceedings. The separate action brought by the Applicants seeking annulment of the Decision is still to be heard and decided, so the Court’s position on whether the Commission may require disclosure of the requested documents may change. Broadcom has also appealed the Order to the ECJ. Businesses should therefore treat the Order as important guidance on the Court’s current approach, rather than as the final word on the scope of the Commission’s powers or EU legal professional privilege in this context.

Conclusion

In conclusion, on the Court’s prima facie assessment, a document does not fall outside the scope of a Commission request for information by reason of its location outside the EU, and legal professional privilege under EU law does not extend to advice from a business’s own in-house lawyers. The Order therefore reinforces the importance of involving external Counsel where sensitive advice on EU competition law is required. Broadcom’s ongoing appeal to the ECJ will be a key development to watch, as the ECJ may provide further clarity on the relevant rules.

Practical steps for businesses

The following steps may assist businesses that supply goods or services in the EEA:

1. Assess the scope of any Commission request by reference to the substance of the request, not simply the location of the requested documents. Documents stored outside the EU should not be assumed to fall outside the scope of a request for information on that basis alone.
2. Maintain clear identification of external legal advice and communications with external legal advisors. The ability to distinguish external legal advice from other material is likely to assist in responding to a request within the limited time allowed.
3. Engage with the Commission early on legal professional privilege. In this case, the Commission narrowed the scope of its request after the point was raised, although it did so expressly as an exceptional step in the context of that case.
4. Note the form of the request. The Court recorded that decisions under Article 18(3) (as opposed to a mere request for information) carry the risk of fines for non compliance and are generally adopted so that a response is not treated as a voluntary waiver under US (or UK) law. This mitigates the risk of losing legal professional privilege under US (or UK) law which may treat compulsory disclosures to foreign regulators as not waiving privilege.
5. Consider group wide exposure. Where a group has an EU subsidiary or presence, the obligations of the parent company based outside the EU may be the same as if the parent had been addressed directly.
6. Treat deadlines seriously. The Decision required the information to be provided within five weeks of notification of the Decision.
7. Consider obtaining sensitive advice on EU competition law from external Counsel as this may benefit from legal professional privilege under EU law and not require to be disclosed to the Commission following a request for information.

How we can help

Our competition team advises businesses on competition law including the practical management of information requests received from competition authorities. Find out more about Blake Morgan’s competition law expertise, and how we can assist, here.

[1] Article 18(3) of Council Regulation 1/2003 on the implementation of the rules on competition empowers the Commission, by decision, to require an undertaking to supply specified information within a fixed time limit, and requires that decision to state the legal basis and purpose of the request, to indicate the penalties applicable under Articles 23 and 24, and to indicate the right to have the decision reviewed by the EU Courts.