Competition Policy Brief - legal professional privilege in European Commission competition law investigations: has the status of in-house lawyers changed?

In November 2025, staff of the Competition Directorate-General of the European Commission (“Commission”) published a Competition Policy Brief (“Brief”)[1] considering whether the protection of legal professional privilege (“LPP”) in Commission competition law investigations should be extended to cover advice given by in-house lawyers. Whilst different national regimes take a different approach and some commentators have advocated for LPP to be expanded, the authors of the Brief were of the view that no change is warranted, and considered that the potential risks outweigh the purported benefits of regulatory alignment and improved self-assessment for businesses.

Current approach to LPP in Commission competition investigations

LPP is the principle that certain communications by a lawyer made in their professional capacity are protected from disclosure, for example, to public authorities investigating a suspected competition law infringement.

As regards competition law investigations by the Commission, LPP protects only communications with, or advice from, independent (external) EU qualified lawyers. This position was confirmed in 2010 by the European Court of Justice in Akzo[2],  which ruled that, in the context of Commission competition law investigations, communications by in-house lawyers are not covered by LPP, not least since an in-house lawyer’s employment relationship means that he/she lacks the necessary degree of independence.

Calls for change

In recent years, a number of commentators have suggested that the Commission should relax its rules in this regard and extend LPP to in-house lawyers on the basis that:

1.  a number of Member States have increasingly been extending LPP to communications involving in-house lawyers; and
2.  the onus on businesses to self-assess whether their conduct infringes competition law is hampered in circumstances where in-house lawyers’ communications are not protected.

The authors’ assessment 

The authors of the Brief are of the view that the arguments used by those calling for change are unsubstantiated and unconvincing, stating that expanding LPP to in-house lawyers would likely hamper the effectiveness of Commission investigations and proceedings.

In this regard, they highlight the following:

• Contrary to the proposition that national rules have changed, only five Member States[3] recognise some form of in-house LPP that applies in investigations conducted by national competition authorities. 
• Regardless of developments at a national level, the position under EU law remains that a necessary prerequisite for LPP is full independence. As the European Court held in Akzo, “by its very nature”, a relationship of employment precludes the requisite full independence. 
• The case law of the European Court has consistently rejected the notion that self-assessment justifies extending LPP to in-house lawyers’ correspondence. Whilst an in-house lawyer’s proximity to the business can be beneficial given a lawyer’s in-depth knowledge of the business, an employment relationship is characterised by subordination, which may preclude the lawyer from conducting a candid compliance assessment and may make the ability of in-house counsel to oppose plans of questionable compliance more difficult. 
• Extending LPP to in-house lawyers would likely hamper the effectiveness of Commission investigations and enforcement, to the detriment of consumers. First, expanding LPP to in-house lawyers would make investigations longer and more cumbersome. One reason for this is that an in-house lawyer’s role is often not limited to the provision of legal advice, but it can often concern commercial matters.  In such circumstances, it would be very resource-intensive to verify whether each item of in-house correspondence truly amounts to protected legal advice or not. Second, it would be challenging to define the precise scope of in-house LPP protection in a way that is not prone to abuse by wrongdoing businesses. An overly broad scope would enable an infringing business to rely on LPP to conceal evidence of its wrongdoing, or even use the protected status of such communications to facilitate infringing conduct. 

Comment

Experience has shown that the Brief’s authors are right to be wary of calls to expand the scope of LPP.

Aside from a concern that Commission investigations will become more resource-intensive and therefore less fit-for-purpose, businesses engaging in anticompetitive conduct may well use the protection afforded by in-house LPP as another tool to conceal their wrongdoing. This can arise both with regard to forms of anticompetitive conduct that are necessarily secretive, in particular cartels, but also in cases involving abusive conduct, where businesses wish to keep their anticompetitive aims, strategising and conduct concealed.

This is not a hypothetical risk. Common law jurisdictions, such as the US and the UK, in which LPP already extends to in-house lawyers, as well as certain EU jurisdictions, have seen cases in which in-house LPP has been abused:

• In United States, et al. v. Google, LLC, the court referred to a flagrant misuse of the attorney-client privilege, including a finding that Google had trained its employees to add its in-house lawyers to any written communications.
• In De Coster et al v. Amazon, the US court found that Amazon had improperly designated operational, business and strategic documents as attorney-client communications or attorney-work product whilst, in many internal communications, in-house attorneys were simply copied in on emails in an attempt to protect documents from disclosure.
• In Commission Case AT.40588, Teva Copaxone, the Commission relied on documents from Teva’s in-house lawyers who were involved in the design of an anticompetitive strategy to protect a medicine from competition.
• In the Spanish investigation in Case S/0026/19 Merck Sharp Dohme, important evidence of the infringement came from handwritten notes of the defendant’s in-house legal director.

We welcome the conclusions reached by the authors of the Brief that LPP should not extend to in-house lawyers as a reasonable measure to promote compliance and prevent the concealment of evidence, facilitate a faster and more robust conclusion to Commission investigations and (if relevant) any ensuing litigation thereby promoting the effectiveness of competition law. 

Footnotes

[1] The Brief sets out that the content does not necessarily reflect the official position of the European Commission. The authors acknowledge input and feedback from multiple individuals in the European Commission as well as the European Competition Network.
[2] Akzo Nobel Chemicals and Akcros Chemicals v Commission, C-550/07 P, EU:C:2010:512. 
[3] Belgium, Ireland, Hungary, the Netherlands and Portugal.