Professional secrecy applies to all lawyers subject to the Code of Professional Conduct and authorised to practise in one of the EU Member States. The Code of Professional Conduct for Lawyers in the European Union (adopted by the Council of Bars and Law Societies of the European Union) states that confidentiality is a fundamental fundamental right and duty of lawyers that serves both the interests of the administration of justice and the interests of the client. Another basis for professional secrecy is also found in Article 8 of the ECHR. According to these principles, foreign lawyers admitted to practice in the EU are subject to professional secrecy in Belgium. This applies to all lawyers registered with a bar association in an EU Member State. If an EU lawyer is registered as a lawyer in his or her home country and is also on the list of European lawyers (“E-list”) of a Belgian Bar Association, Belgian professional secrecy applies in full in accordance with the principle of “double professional conduct”. If a foreign lawyer from the EU or non-EU countries is not registered with the Belgian Bar, the exact scope and implications of solicitor-client privilege are not entirely clear and have not yet been examined. This decision is noteworthy because it ignores the Akzo judgment of the Court of Justice of the European Communities, which denied in-house lawyers professional secrecy in EU competition proceedings (see chapter European Union). Finally, although the Court of Auditors dealt only with national competition proceedings, it applied the protection of legal privileges on the basis of Article 8 of the ECHR, so that that protection is capable of applying to any other civil, administrative or criminal action. However, the protection does not apply to competition investigations conducted by the European Commission under EU competition law provisions, where the Akzo judgment remains fully applicable. The Court also reaffirms that information received by a lawyer in the context of the defence and representation of the client before the courts and the provision of legal advice, including outside a dispute, remains covered by the BVG. Only if the lawyer carries out additional activity could he be obliged to disclose the information of which he is aware to the authorities.
The protection of confidentiality derives from the law governing the Institute of 1 March 2000 and therefore applies only to registered in-house lawyers who are members of the Institute. In addition, the privilege only applies to opinions sent by in-house counsel to their employer (as opposed to third parties), and confidentiality is lost if the documents are sent or shared with someone outside the company. In addition, confidentiality is granted only for legal advice prepared in his capacity as legal counsel and not for advice given as a manager or operational. Various statutes have granted professional privilege to auditors and external tax specialists and accountants associated with recognized professional organizations. While the primary description of this privilege of confidentiality corresponds to solicitor-client privilege, it is also recognized in reality that lawyers and non-lawyers have very different roles in society. In practice, there is no identical protection of confidentiality between lawyers and non-lawyers. The privilege enjoyed by those professionals thus derives from the nature of their profession and from their membership of a professional organisation and not from their link with a legal matter. As a general rule, it can be assumed that all documents prepared by a lawyer (as a lawyer) or any correspondence from or to that lawyer are protected, regardless of where they are kept, even if they are in the client`s possession. Indeed, professional secrecy is also based on a fundamental right to the protection of privacy and certain information may be linked to the client`s rights of defence. However, each situation must be judged on the basis of its own facts. In a landmark decision of 5 March 2013, the Brussels Court of Appeal ruled that legal advice to in-house counsel (including requests for such advice, related correspondence and preparatory documents) is subject to protection equivalent to professional secrecy in investigations under Belgian competition law. The Court of Auditors based this protection on a fundamental right deriving from Article 8 of the European Convention on Human Rights (ECHR) and Article 7 of the Charter of Fundamental Rights of the European Union, which protect the right to privacy and private correspondence.
By judgment of 22. In January 2015, the Court of Cassation rejected the appeal lodged by the Belgian competition authority against this decision. It is now clear that legal advice provided by in-house legal advisers (who are members of the Institute) to their employers and in their capacity as legal advisers is protected by professional secrecy, except in antitrust investigations conducted by the European Commission (Akzo judgment). Legal assistants are considered representatives of the firm. Information disclosed to legal assistants is protected by legal privilege. Although the concept of in-house counsel privilege has been recognized by the Supreme Court of Belgium, not all communications of all in-house lawyers are protected. For certain professions (e.g. lawyers or tax consultants), the obligation to declare conflicts with solicitor-client privilege (BVG). Although DAC6 allows Member States to exempt intermediaries from the notification obligation if they are bound by professional secrecy, there are still circumstances in which the BVG must be breached, either by virtue of the Belgian transposition or even by virtue of the provisions of the DAC6 Directive itself. For these reasons, and following the objection of several professional associations, on 15 September 2022 the Belgian Constitutional Court partially lifted the notification obligation if it was considered contrary to the SNB and partially referred certain questions for a preliminary ruling to the European Court of Justice if potential infringements of the BVG are based on the Directive itself (case 103/2022).