For the first time, French companies can shield their in-house counsel’s legal opinions from compelled disclosure in litigation — a game changer that sits alongside, and in some respects surpasses, the protection offered by trade secret law.
France has significantly expanded its business confidentiality framework. Law No. 2026-122 of 23 February 2026 creates a legal privilege for in-house counsel opinions — a protection long recognized in common law jurisdictions and long demanded by French companies operating internationally. It complements existing trade secret protection under Articles L. 151-1 et seq. of the Commercial Code, but it operates very differently.
A new, self-contained privilege
This new law creates an autonomous confidentiality regime, distinct from bar professional secrecy. Its protection is opposable in civil, commercial and administrative proceedings — no proportionality balancing required. But the conditions are rather strict: (i) the sender must be an in-house jurist who is both legally qualified (master’s degree in law) and ethically trained (completion of a prescribed ethics training course); (ii) the opinion must be a genuine legal opinion based on a rule of law (strategic or commercial advice is excluded); (iii) circulation of the opinion must be restricted to directors and governing body members across the group; (iv) the document must bear the mandatory label ‘Confidential — legal consultation — in-house counsel’, with the identification of the sender and the recipients.
When these conditions are met, the opinion cannot be seized or compelled in litigation, except in very limited circumstances (e.g., the company waives its privilege). Criminal, tax, customs and EU competition proceedings remain outside its scope.
An implementing decree (décret d’application) has yet to be published. Until it is, the precise conditions of practical implementation remain to be confirmed.
For more details on this new law and its impact, review our previous article here.
Trade secrets in litigation: a calibrated approach
Trade secret law operates on a different logic. Rather than an ‘absolute’ bar, it gives courts the tools to balance confidentiality against the right to evidence. This approach may seem balanced, but two difficulties are particularly acute.
The first difficulty is establishing trade secret status at all. The conditions of Article L. 151-1 of the Commercial Code require proper groundwork. French courts have made this increasingly clear in recent decisions. In particular, French courts tend to require that a party establishes trade secret status with document-by-document justification and submits evidence of the actual reasonable protective measures put in place within the organization. Meeting these conditions can be a challenge in practice.
The second difficulty is that even a successful trade secret claim does not guarantee absolute protection. A court may still order production of a trade-secret-protected document if disclosure is found to be indispensable — a demanding standard, higher than mere relevance — and strictly proportionate to the objective pursued. If that threshold is met, the only remaining question is the mode of communication — whether production takes place in redacted form and/or within a confidentiality club — not whether production occurs at all.
The broader picture
The new law on confidentiality of in-house counsel’s legal opinions and trade secret law are not rivals — they protect different categories of information through different mechanisms: the privilege shields legal thinking; trade secret law protects commercial intelligence. Together, they give French companies a more complete confidentiality framework.
The practical value of the new privilege is particularly apparent considering the two difficulties of trade secret law identified above. It cuts through both at once: where its conditions are met, production is simply unavailable.
To get the most out of the framework, companies should comply with the new privilege conditions and monitor the forthcoming implementing decree, document their trade secret protection measures with the specificity that courts now clearly expect, and treat the two regimes as complementary pillars of a coherent information-protection strategy.
For further information, please contact:
Thierry Lautier, Partner, Bird & Bird
thierry.lautier@twobirds.com
