General Court: Commission’s Document Reach Is Global, While Privilege Has Limits

In this insight piece for Linklaters, authors Neil Hoolihan, William Leslie, Gerwin Van Gerven, Mihai Victor Puskás discuss the General Court’s 3 August 2026 order dismissing Broadcom and VMware’s attempt to suspend a European Commission decision requiring them to produce documents in an investigation into VMware’s software licensing practices. The case confirms that the Commission can require companies to produce documents located outside the EU where the conduct under investigation has sufficient effects or implementation within the EU.

The authors highlight the unresolved question of whether communications with independent external lawyers qualified outside the EU are protected by EU legal professional privilege. Although the Commission excluded such communications from its request in this case, it characterized the decision as an exceptional accommodation based on international comity rather than a recognition of a legal entitlement. The General Court therefore left open whether non-EU external counsel fall within the scope of EU privilege.

By contrast, the Court was clear that EU privilege does not protect communications with in-house counsel, regardless of where those lawyers are qualified. Applying the principles established in AM & S Europe and Akzo Nobel, the Court emphasized that independence from the client, rather than the lawyer’s jurisdiction of qualification, determines whether EU legal professional privilege applies. The authors also note that compelled disclosure under an Article 18(3) decision does not necessarily waive privilege recognized under third-country law, including US privilege.

Finally, the authors compare the EU position with the UK’s approach to cross-border information requests, noting that both jurisdictions now recognize broad extraterritorial information-gathering powers, although they rely on different legal doctrines. For businesses facing a Commission investigation, the key takeaway is that documents cannot be shielded from an Article 18(3) request simply because they are held outside the EU, while non-EU in-house counsel receive no special privilege protection. The authors also stress the practical importance of Article 18(3) decisions, which can help preserve privilege under a company’s home-jurisdiction laws when compelled disclosure is required…

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