No change for in-house lawyers' EU legal privilege status

On 10 November 2025 the EU Commission published a Competition Policy Brief discussing whether EU legal professional privilege (EU LPP) in competition law investigations should extend to in-house lawyers. The briefing is authored by a number of Commission officials from DG Competition and makes it clear that the content of the Policy Brief does not necessarily reflect the official position of the Commission. Nonetheless it is an important policy document that demonstrates the views that officials within DG Competition hold on this issue.

The Policy Brief concludes that there is no compelling legal or policy basis for extending EU LPP to in-house lawyers. The arguments that are being made by some stakeholders in support of such an extension are not persuasive and doing so may even delay and adversely affect competition law investigations according to the authors.

The definition of EU legal professional privilege

EU LPP provides protection against disclosure in the context of litigation or compulsory powers of investigation by the EU Commission. It is narrowly defined and only applies to communications with or legal advice that is provided by independent EEA qualified lawyers.

The definition of EU LPP is not set out in EU legislation but is based on EU case law developed in the context of the production and seizure of documents in EU competition law investigations. The case of Akzo Nobel Chemicals and Akros Chemicals v Commission was focused specifically on the requirement for lawyers to be fully independent for their advice and communications to benefit from EU LPP.

The Court of Justice held that "an in-house lawyer cannot, whatever guarantees he has in the exercise of his profession, be treated in the same was as an external lawyer, because he occupies the position of an employee which, by its very nature, does not allow him to ignore the commercial strategies pursued by his employer, and thereby affects his ability to exercise professional independence" (paragraph 47).

Time for change?

In the context of the Commission's review of Regulation 1/2003 on the implementation of the EU competition rules, a number of stakeholders have argued that the definition of EU LPP should also be reviewed and extended to communications and advice by in-house lawyers.

They justify the need for change on the basis that an increasing number of countries now recognise LPP for communications involving in-house lawyers under their national law. They also claim that the self-assessment regime of Regulation 1/2003 makes it all the more important that correspondence and advice from in-house lawyers is protected under EU LPP and that doing so would enhance compliance with the EU competition rules.

The Policy Brief response

The authors expand on why they consider these arguments to be unconvincing and conclude that it would be wrong to extend the scope of EU LPP to in-house lawyers.

First of all, they find that there is no clear trend at Member State level towards LPP protection for in-house lawyers. Only five of the EU Member States recognise some form of LPP for in-house lawyers in competition law investigations and the majority of Member States do not recognise LPP for in-house lawyers under their national legislation, with their approach often based on the principles set out in the Akzo case. They also clarify that in any case the position at Member State level is not relevant for determining the scope of EU LPP. Instead, it is based on the principle established by the Court of Justice in Akzo that a relationship of employment precludes the requirement for full independence.

The Policy Brief also rejects the argument that self-assessment increases the need for in-house lawyers to benefit from EU LPP and would increase competition law compliance. The Akzo case post-dates the introduction of the self-assessment regime and the case did consider but ultimately rejected similar arguments.

According to the Policy Brief, extending EU LPP to in-house lawyers could in fact hinder rather than improve the effectiveness of competition law investigations and proceedings. There have for example been instances where the Commission uncovered evidence of infringements in correspondence by in-house lawyers and some infringements would therefore never have come to light if that correspondence had been protected by legal privilege.

Extending EU LPP protection to in-house lawyers could also delay investigations and make them more onerous. The role of in-house lawyers is not always confined to providing legal advice and they are likely to be involved in a range of other types of internal communications, that do not extend to legal advice. Determining precisely which communications should benefit from EU LPP risks being time consuming and burdensome and may impact the speed and quality of investigations.

The Policy Brief is focused on the question of whether EU LPP should be extended to cover certain in-house lawyer advice and does not address other issues around the scope EU LPP. The authors recognise that the CJEU has issued further cases on legal privilege over the last years, in particular in Orde van Vlaamse Balies and Others where the Court clarified that EU LPP applies to legal advice in general, such as regulatory or commercial advice, as opposed to only advice that is prepared in the context of the client's rights of defence in legal proceedings (see our article here). Although that case arose in the context of a dispute around EU taxation rules, this should be a principle of general application and should equally apply in a competition law context.

In this respect It is also good to see that the Policy Brief, when describing the scope of EU LPP in general, does not refer to the requirement for the document to have been prepared for the right of defence but instead refers to 'communications or legal advice that is prepared by independent EEA qualified lawyers'.

Practical implications

EU LPP plays an important role in competition law investigations. Documents that are protected by privilege do not have to be disclosed when responding to requests for information or in the context of Commission dawn raids. Dawn raids can be stressful events and whether or not specific documents are protected under EU LPP can be a contentious issue during a dawn raid.

Businesses should therefore make sure that they take all the measures necessary to ensure that their documents benefit from EU LPP at the time they are created. This will include the following steps:

• Make sure that privileged documents are clearly marked as such and are ideally kept on a separate file marked 'privilege and confidential' - note you may still need to provide appropriate reasons to justify why you are claiming privilege for a particular document
• If written advice of a sensitive nature is required consider instructing an external lawyer entitled to practise in the EEA. When doing so state that you are seeking legal advice and mark as legally privileged and confidential
• Instruct non-legal experts through your external EEA lawyer and ensure that their reports are transmitted and signed off by external counsel
• Only circulate advice received from your external EEA lawyer in its original form. Avoid creating a new document, such as a summary or commentary of the advice as this may not be privileged
• When circulating legal advice from external lawyers do make it clear that recipients must treat the advice as confidential and make sure that the document is not circulated more widely than is necessary

In dawn raid situations, it will also be important to agree a protocol with the investigators at the start of a dawn raid to filter out LPP documents and have a clear process in place on how to handle documents if there is disagreement over their privilege status. This will typically involve escalating to a specific official appointed to review LPP documents and resolve disputes with the investigating team during the raid and, if disagreements persist, placing the documents in a sealed envelope (or electronic equivalent) to be opened post-raid only in the presence of external counsel for further debate. The matter can also be escalated to the Hearing Officer (an official directly attached to the Competition Commissioner and who is not part of DG Competition) for resolution. Ultimately parties can also appeal to the General Court either against the dawn raid or other decision to request information or against the final decision alleging breach of the LPP rules and the rights of defence.

External counsel can work closely with companies to ensure tricky LPP issues are resolved as effectively as possible and safeguard rights of defence.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.