The system adopted is simple and pragmatic. The intention is to protect legal advice prepared by qualified company lawyers. Its objective is to prevent such advice from being used against the company in legal or administrative proceedings.
Legal consultations consisting of a legal opinion or legal advice, intended for the bodies of the company or group and prepared by a company lawyer who has a master’s degree in law and who has undergone ethics training, are confidential.
These consultations are identified by the wording “Confidential – legal consultation by company lawyer” and have specific filing procedures.
In the context of civil, commercial or administrative proceedings, they may not be subject to seizure or disclosure to a third party, including any administrative or foreign authority.
The confidentiality cannot be invoked in criminal and tax proceedings.
2. Prior to its enactment, the French Law was referred to the Constitutional Council which declared it Constitutional while expressing two interpretive reservations. This is Decision of the Constitutional Council no. 2026-900 DC of 18 February 2026. These interpretive reservations form an integral part of the Law: the courts are required to apply the text in accordance with the interpretation given by the Council.
The first interpretive reservation concerns access without a physical inspection.
As originally drafted, the Law only provided for recourse to an ad hoc procedure (judicial commissioner, sealing, judicial oversight) during a physical inspection of the premises. The Council stated that this was not sufficient. When an authority makes a written request for a document and the company refuses, the same judicial oversight must be possible. The authority may then apply to the Judge of Liberties and Detention (JLD), who may appoint a judicial commissioner. Without this interpretive reservation, the company could block any written request without any recourse being possible.
The second interpretive reservation concerns cases of fraud. The Council clarified that the court may lift confidentiality where the consultation was prepared or used in order to facilitate or conceal fraud. The protection does not therefore extend to misuse: anyone relying on it in respect of documents used as part of a fraudulent arrangement cannot invoke it.
3. What are the main differences between the French and Belgian systems?
In broad outline, we can identify seven differences:
1. The institution:
In Belgium, the Law of 1 March 2000 established the Institute of Company Lawyers (IBJ-IJE), a professional body with legal personality. Separate disciplinary authorities were set up. Without membership of the IBJ-IJE, a company lawyer does not benefit from this protection and may not use the protected title “company lawyer” (juriste d’entreprise).
In France, the Law of 23 February 2026 (2026/122) does not create any institution. It refers to a commission and a ministerial decree that have yet to be established. The French Association of Company Lawyers (Association Française des Juristes d’Entreprise – AFJE) is a voluntary association without any legal powers.
2. Access conditions:
In Belgium, the rule is simple: all legal advice prepared by a company lawyer registered with the IBJ-IJE is protected.
In France, each consultation must individually satisfy a set of cumulative conditions. Failure to meet just one of these conditions is sufficient to exclude the document from any protection.
Qualification: both countries require a law degree. In France, a transitional measure applies: company lawyers holding only a maîtrise in law but with at least eight years’ experience in a legal department are treated as equivalent to those holding a master’s degree.
Ethics training: in Belgium, continuing training is mandatory through the IBJ-IJE. In France, the Law provides for one-off ethics training – but the framework, commission and training itself do not yet exist. The body responsible for organising it has not been designated. The only certainty is that the costs will be borne by the employer.
Team members: in Belgium, protection only applies to the IBJ-IJE member personally. In France, protection is expressly extended to team members working under the supervision of the company lawyer, provided that they themselves satisfy the qualification and ethics training requirements.
3. What is protected:
In Belgium, protection is broad. It not only covers the final consultation, but also all communications relating to it within the company: the email from a manager asking for advice, the company lawyer’s response, draft versions and preparatory documents. All this internal communication is protected and cannot be seized during a search or investigation.
In France, the protection is more stringent. Only the final consultation is covered, and only if it meets three additional formal requirements: it must be a genuine legal analysis based on a legal rule (a simple internal memo or report is not protected), it must be marked “confidential – legal consultation – company lawyer” and it must be filed separately. Internal emails and preparatory documents are not covered.
4. Scope of protection:
In both countries, the consultation is protected in civil, commercial and administrative proceedings: it cannot be seized or produced as evidence. Protection does not apply in cases involving criminal offences. In tax matters, the position differs: in Belgium, the issue remains disputed and uncertain – the tax authorities challenge this protection.
In France, the exclusion of protection in tax matters is expressly provided for by law. European Union authorities are also excluded from protection in both countries.
5. Procedure in the event of a dispute:
In Belgium, there is no specific procedure provided for by law. When an authority demands a document that the company lawyer considers confidential, the company can challenge this through the ordinary judicial channels.
In France, the procedure is enshrined in law. The document can only be seized by a judicial commissioner who seals it immediately and retains it for safekeeping at their offices. The party challenging the seizure has 15 days to bring the matter before a court: in civil and commercial disputes, the President of the Court acting in summary proceedings; in administrative proceedings, the Judge of Liberties and Detention (JLD). This judge opens the sealed document, hears the parties and rules on the matter. An appeal may be lodged before the First President of the Court of Appeal within three months. The company must be assisted by legal counsel. The JLD may also be applied to in the event of a refusal of a written request, without a prior physical inspection.
6. Discipline and penalties:
In Belgium, the IBJ-IJE has a comprehensive disciplinary system set out in law (warning, reprimand, suspension and striking off) with rights of appeal, including before the Court of Cassation.
In France, there is no disciplinary body. The only penalty provided for is criminal: anyone fraudulently affixing the mandatory statement to a standard document is liable to one year’s imprisonment and a fine of EUR 15,000.
7. Entry into force:
The Belgian law has been in force since 2000 and was expanded in 2023. The French law has not yet come into force. It will come into force on 1 February 2027 at the latest, after the adoption of 3 implementing measures (implementing decree, decree concerning the opposition of the Commission, ministerial decree establishing the ethics training framework). The government will be required to submit an evaluation report to Parliament within three years.
In its decision, the Constitutional Council observed that “by adopting these provisions, lawmakers intended to enable company management bodies to benefit from internal legal advice conducive to compliance with the legal rules applicable to them. In doing so, it pursued an objective of general interest.”
