Legal Professional Privilege and the EU's Fight Against Money Laundering

Abstract

The article comments on a recent judgment of the European Court of Justice in Case C-305/05, Ordre des barreaux francophones and germanophone & Others v Conseil des Ministres, where the Court reviewed the legality of the obligation to inform and cooperate with competent authorities, which is imposed on the legal profession by Directive 91/308/EEC (the 1991 Directive) in respect of money laundering.

The case comment is divided into four sections. First, it gives a brief comparison of the scope of LPP provided by the English courts and by the ECJ's previous case law. Secondly, the context of the case is set out. Thirdly, it examines a particular problem that arose in the case, namely that too narrow a question was referred to the ECJ by the Belgian court. Because of this the ECJ was able to limit its review of the 1991 Directive's legality to its compatibility with LPP in light of the right to a fair trial and the respect of rights of defence. As a necessary corollary the ECJ did not examine other aspects of the rationale which underlies LPP i.e., that it protects rights, such as the right to privacy and serves to fulfil a number of different aims i.e., better administration of justice or compliance with law. As a consequence the ECJ has left the exact scope of LPP in the EU ambiguous. This could lead to further difficulties, since it is not clear whether e.g. United Kingdom's implementation of the Directive is compatible with its requirements.

Keywords: European Union law, legal professional privilege, money laundering, ECJ

JEL Classification: K10, K41, K42