In an ongoing investigation of Broadcom, the EU Commission issued a decision compelling Broadcom to produce documents located in the United States — documents that are privileged attorney-client communications under U.S. law. The EU General Court denied Broadcom's request for interim relief, setting the stage for what could be a landmark ruling on whether EU privilege rules can override the legal protections of other sovereign nations.
For the first time, EU courts must decide whether the EU's restrictive privilege framework — which has never recognized privilege for in-house counsel — can be used to reach across borders and strip companies of protections they have long relied upon under U.S. law.
The Chamber has released a new white paper — The European Commission's Attack on In-House Counsel Privilege — sounding the alarm on a legal development that could fundamentally disrupt how U.S. companies operate in Europe.
Why This Matters Far Beyond Broadcom
The stakes extend to every U.S. company with a European market presence. If the Commission's approach is upheld, the most sensitive legal communications of U.S. businesses — created by U.S.-qualified lawyers, located in the U.S., advising on U.S. law — could be seized in EU competition investigations. The consequences would be severe:
- A chilling effect on candor: Companies would hesitate to put legal analysis in writing, undermining the frank communication that effective compliance depends on.
- Degraded compliance programs: The quality of internal investigations would suffer, weakening the very self-policing regimes that U.S. regulators rely on.
- Extraterritorial overreach: The Commission's approach would effectively export EU privilege rules to the U.S. and other non-EU jurisdictions, penalizing companies simply for having a European market presence.
- Cascading global risk: In an era of synchronized international antitrust investigations, a single disclosure in the EU could trigger liability exposure worldwide.
Protecting In-House Privilege is a U.S. Priority
The Commission's position is also squarely at odds with a clear and consistent U.S. government priority: securing recognition of attorney-client privilege — including for in-house counsel — in international trade agreements.
The United States-Mexico-Canada Agreement (USMCA) includes an explicit commitment requiring competition authorities of all three countries to treat as privileged "lawful confidential communications between the counsel and the person if the communications concern the soliciting or rendering of legal advice."
More recently, the United States made privilege protection a centerpiece of its trade negotiations with the Republic of Korea. The November 2025 Korea Strategic Trade and Investment Deal, announced jointly by Presidents Trump and Lee and reaffirmed in the White House Joint Fact Sheet, explicitly commits Korea to "provide additional procedural fairness provisions in competition proceedings, including the recognition of attorney-client privilege."
The U.S. government has made protecting attorney-client privilege — including for in-house counsel — a recurring and affirmative priority in its trade agenda. One can expect future reciprocal trade agreements to include such protections. Washington should make it clear to Brussels that its extraterritorial reach will not go unnoticed.
The EU Commission’s Double Standard
The Chamber's white paper highlights a striking inconsistency: the European Commission has repeatedly appeared before U.S. courts to invoke international comity — asking American judges to shield EU investigative files from U.S. discovery. U.S. courts have honored those requests. Yet the Commission now insists that EU law leaves no room for the privilege protections of the very sovereigns whose courts have shown it deference.
That asymmetry — when EU interests are at stake, but not when they aren't — is precisely what the doctrine of comity forbids.
What Happens Next
EU courts must recognize that the European Commission may not compel production of communications privileged under the law of a non-EU sovereign. Specifically, EU courts should honor U.S. in-house counsel privilege as a matter of international comity, consistent with the same principles the Commission has invoked before U.S. courts.
