The reversal does not apply to professional secrecy: the Supreme Court upholds the interim protection of communications between Renfe and its in-house lawyers
Supreme Court preserves interim protection for Renfe’s in-house legal communications
The scope of confidentiality surrounding communications between a company and its in-house lawyers remains a matter of controversy. May an authority access emails, reports and notes exchanged between a company’s management and its in-house legal team? Is it sufficient to declare that information confidential after the event? Or does mere knowledge of its contents already cause irreversible harm?
The Spanish Supreme Court Order of 25 March 2026, issued in cassation appeal no. 653/2026, does not yet provide a definitive answer as to whether all communications between a company and its in-house lawyers are protected. It does, however, leave in force a particularly significant interim measure: until that question is determined, the National Commission on Markets and Competition cannot access or use certain documents exchanged between Renfe and its in-house lawyers. The reason is as simple as it is compelling: once a secret has been disclosed, it cannot be restored.
The case originated in a 2017 decision of the National Commission on Markets and Competition, which found that Renfe Operadora and Renfe Mercancías, together with other companies, had infringed the Spanish Competition Act and Article 101 of the Treaty on the Functioning of the European Union. In order to verify compliance with that decision, the Commission subsequently opened a monitoring file and carried out an inspection at Renfe’s premises between 23 and 27 October 2023.
During the inspection, numerous documents were added to the file. Renfe requested that part of that material be excluded, arguing, among other grounds, that it contained communications protected by lawyer–client confidentiality. The Commission agreed to exclude certain documents prepared for the purpose of seeking advice from external lawyers, or reflecting advice received from them, but retained the communications between Renfe and its in-house lawyers on the basis that they were not covered by that protection.
The dispute therefore raises a question of considerable practical significance: whether the relationship between a company and lawyers integrated into its own corporate structure deserves the same protection as its relationship with external legal advisers.
Renfe challenged the decision before the Spanish National High Court and sought an interim measure requiring the disputed documents to remain outside the file until the main proceedings had been determined. The National High Court initially refused to suspend the decision, considering the potential harm to be hypothetical. However, when deciding the application for reconsideration, it changed its position.
In its Order of 13 November 2025, the Court held that the Commission’s potential knowledge of the contents of those communications could cause harm that would be difficult to remedy. The logic is clear: a court may subsequently order a document to be removed or annul a decision based on it, but it cannot erase from the minds of those who have already read it the company’s legal strategy, its doubts, the risk assessments carried out by its lawyers or the recommendations they made.
The National High Court also considered that temporarily keeping the documents separate from the file would not cause any material harm to the public interest. Were it ultimately concluded that the documents were not protected, the Commission could simply add them back to the file. The asymmetry between the two scenarios was clear: their interim exclusion was reversible; allowing immediate access to their contents was not.
As an additional argument, the National High Court referred to two recent judgments of the Court of Justice of the European Union (Orde van Vlaamse Balies and Others and Ordre des avocats du Barreau de Luxembourg) from which it inferred that the protection afforded to communications between lawyers and their clients might not be strictly limited to the exercise of the rights of the defence, but could extend more broadly to legal advice.
The Commission sought permission to bring a cassation appeal. Among other arguments, it maintained that the National High Court had improperly prejudged the merits of the case and that the European case law cited was not applicable in the field of competition law. It also relied on the well-known Akzo Nobel judgment, according to which communications with in-house lawyers do not enjoy, in EU competition investigations, the same protection as communications with external lawyers.
The Supreme Court nevertheless declared the appeal inadmissible. It did so not because it had already recognised a general privilege covering communications with in-house lawyers, but because it considered that this question must be determined in the main proceedings following a full exchange of arguments between the parties. The interim proceedings had a more limited purpose: to decide whether access to the documents should be temporarily prevented so that the right being asserted, should it ultimately be recognised, would not be deprived of any practical effect.
The Supreme Court therefore rejected the suggestion that the National High Court had prejudged the outcome. The interim ruling does not state that all communications between Renfe and its in-house lawyers are protected, nor that the Commission has already infringed a fundamental right. It merely takes into account the possibility that such protection may exist and recognises that, were access permitted, the resulting harm could be irreversible.
That distinction is essential. The Order does not expressly displace the Akzo Nobel doctrine, nor does it establish that the more recent European judgments apply without qualification to inspections carried out by the Commission. The substantive debate remains open and will have to be determined by the National High Court.
The case also serves as a reminder that confidentiality does not depend solely on a lawyer appearing as the sender or recipient of an email. In practice, in-house lawyers often perform hybrid functions: they provide legal advice, participate in business decisions, coordinate investigations, carry out compliance work and may also assume management responsibilities. This plurality of functions can make it difficult to distinguish between communications containing genuine legal advice and those relating to commercial or operational activities.
Companies should therefore structure their flows of legal information appropriately. They should clearly identify when legal advice is being sought, separate legal assessments from purely commercial decisions as far as possible, restrict the circulation of documents and avoid indiscriminate email chains in which legal analysis is mixed with business discussions. Merely labelling a document “confidential” or “privileged” does not, in itself, create protection where none exists, but orderly documentation of the legal purpose of a communication may prove decisive.
The case also highlights the importance of having specific inspection protocols in place. Companies must be able to identify potentially protected documents quickly, raise objections on an individualised basis and request their segregation before the inspection team gains access to their contents. A delayed response may turn an eventual legal victory into a purely formal remedy.
The Order of 25 March 2026 does not bring the debate over the protection of communications with in-house lawyers to an end, but it places the issue at the centre of legal discussion. The National High Court’s future judgment will have to address the scope of that confidentiality and the impact of the most recent European case law.
Until then, the central conclusion is clear: documents can be removed from a file and decisions can be annulled; what cannot be recovered is a secret that is no longer secret.
Rania Zitouni Chahdi