Defence counsel privilege in the EU legal system

Abstract

This study examines the first judgment of the Court of Justice concerning the confidentiality of communications between lawyer and client (i.e. “legal privilege”, “LP”), delivered in AM & S Europe v Commission, Case 155/79, on 18 May 1982, which is among the most frequently cited in Luxembourg case-law. The findings are related to subsequent Luxembourg case-law and to Polish case-law, as well as to the protection laid down in Article 4 of Directive 2013/48/EU and in domestic provisions establishing defence counsel’s professional secrecy. This analysis yields the following gradation:– as a rule, full protection of the confidentiality of the relationship between an independent lawyer and the client in the case-law of the Court of Justice, influenced by the case-law of the European Court of Human Rights, and in Polish constitutional jurisprudence and the case-law of the Polish Supreme Court, subject to two Code provisions that depart even from the State’s duty of abstention, a departure endorsed by the Constitutional Tribunal within a defined scope;– narrower protection in Polish law on a literal interpretation;– a marginalisation by the Court of Justice of Article 4 of Directive 2013/48/EU, which, on a literal construction, establishes only a duty of abstention;– finally, the case-law of the Polish ordinary courts is the least predictable.