On November 1, 2025, the Commission issued a policy brief[1] in which it rejected calls to extend the legal professional privilege to in-house counsel communication. The Commission examined the question after stakeholders called for such an extension as part of the revision process of the regulation governing antitrust investigation, Regulation 1/2003.[2]
Cleary Gottlieb has represented parties calling for the extension of the legal professional privilege on various occasions and in various cases, including in Akzo Nobel,[3] as well as in national proceedings.[4]
A Brief Recap on EU LPP:
Legal professional privilege (“LPP”) protects lawyer-client communications from compelled disclosure, including to public authorities investigating potential infringements. It is grounded in the lawyers’ “fundamental role in a democratic society .. of defending litigants.”[5]
The EU’s Akzo Nobel case law only protects communications through LPP if they involve “full[y] independent” EU qualified lawyers, as opposed to in-house counsel. The Court of Justice’s reasoning was that “an in-house lawyer, despite his enrolment with a bar or law society … does not enjoy the same degree of independence from his employer as a lawyer working in an external law firm does in relation to his client. Consequently, an in-house lawyer is less able to deal effectively with any conflicts between his professional obligations and the aims of his client.”[6]
As a result, EU LLP currently covers:
- Written communications exchanged with an independent EU qualified lawyer relating to the provision of legal advice, the antitrust investigation at hand or subject matter of the investigation.[7]
- Internal notes or documents circulated within the company which are confined to reporting the text or content of such communications.[8]
- Preparatory documents which are created exclusively for seeking legal advice from an independent EU qualified lawyer.[9]
During the review, in addition to all the arguments made previously, including before the European Courts, stakeholders had made two main arguments, which the Commission rejected.
First, stakeholders argued that since the Akzo judgments, more Member States have moved to protect LPP for communications involving in-house lawyers. The Commission rejected this argument, finding that only a minority (five out of 27) Member States recognize, subject to various conditions, some form of in-house LPP that applies in competition law investigations (Belgium, Ireland, Hungary, the Netherlands, Portugal). However, the Commission excluded Greece on the basis that “Greek case-law has so far not upheld the existence of in-house LPP in competition law investigations”, while Greek law does not distinguish between in-house and external counsel for the application of LPP.[10] Moreover, France and Spain have pending court and legislative developments that could extend LPP to in-house communications, as acknowledged in the Policy Brief.[11]
Second, stakeholders argued that Regulation 1/2003’s focus on the self-assessment of compliance with antitrust laws—as compared with the previous system where agreements had to be reviewed by the Commission—made the protection of in-house communications from disclosure more important. The Commission rejected this argument on the basis that (i) Akzo Nobel post-dates the entry into force of Regulation 1/2003 and expressly rejected claims that the need for companies to self-assess justified an extension of LPP; and (ii) extending LPP to in-house counsel would reduce the effectiveness of competition law enforcement. In particular, the Commission argued that:
- The protection of in-house LPP could lead to abuse. The Policy Brief pointed to recent US examples: (i) it cited Justice Mehta who found a “flagrant misuse of the attorney client privilege”, including a finding where “[defendant] trained its employees to add its in-house lawyers on any written communication regarding [the agreement which was later investigated]”;[12] and (ii) it reproduced another US court’s finding that “[defendant] improperly designated operational, business, and strategic documents as attorney-client communications or attorney-work product”, and that “in many of these communications, in-house attorneys [were] simply copied on emails.”[13]
- In real-life cases, evidence of wrongdoing has been found in in-house counsel correspondence. The Policy Brief referenced the Commission’s Teva Copaxone case where “the Commission relied on documents from Teva’s in-house lawyers who were involved in the design of its abusive strategy to protect Copaxone.”[14]
- In-house lawyers often have roles beyond the provision of legal advice and, for instance, contribute to purely commercial matters. It would thus be difficult, costly, and time consuming for the Commission to have to distinguish in-house counsel’s legal advice from their other types of communications.
The Commission ignored arguments based on the Charter of Fundamental Rights, including the freedom to select counsel, the rights of the defense and due process, and respect for private life, which remain open issues.[15]
As a result, we expect the Commission’s practice of refusing in-house LPP to remain unchanged, even if/when a new procedural regulation is adopted. Companies should therefore continue to follow the usual best practices on in-house counsel communications.
[1] European Commission, Competition Policy Brief, “Legal Professional Privilege in competition law investigations: has the status of in-house lawyers changed?”, November 1, 2025, available here.
[2] Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, OJ L 1, 4.1.2003, p. 1–25; European Commission, ‘Call for Evidence for an Impact Assessment [EU antitrust procedural rules (revision)]’ Ares(2025)5590241.
[3] Judgment of September 14, 2010, Akzo Nobel Chemicals and Akcros Chemicals v Commission, C-550/07 P, EU:C:2010:512 (“Akzo Nobel”).
[4] See our March 4, 2021 alert: “Dutch Court Rules on Legal Privilege for In-House Lawyers,” available here; See our January 31, 2022 alert: “French Cour de Cassation Expands the Scope of the “Secret Professionnel” to Certain In-House Communications,” available here.
[5] Judgment of December 8, 2022, Orde van Vlaamse Balies, Case C-694/20, EU:C:2022:963 (“Orde van Vlaamse Balies”), para. 28.
[6] Akzo Nobel, para. 45.
[7] Judgment of May 18, 1982, AM & S, Case 155/79, EU:C:192:157, paras. 21 to 27, and Orde van Vlaamse Balies, paras. 27-28.
[8] Order of April 4, 1990, Hilti, Case T-30/89, EU:T:1990:27, paras. 13, 16 to 18.
[9] Judgment of September 17 2007, Akzo Nobel, Cases T-125/03 andT-253/03, EU:T:2007:287,para. 124.
[10] Κώδικας Δικηγόρων, Νόμος 4194/2013, ΦΕΚ 208/A/27.09.2013.
[11] European Commission, supra note 1, p. 2. Certain litigants are challenging the Spanish Competition Authority’s narrow definition of legal professional privilege, and the French parliament has examined proposals to extend LPPs to in-house lawyers in recent years, see for instance here.
[12] European Commission, supra note 1, p.4; United States, et al. v. Google, LLC (No. 20-cv-3010 (APM) (D.D.C. Aug. 5, 2024), Dkt. No. 1033).
[13] European Commission, supra note 1, p.4; De Coster et al v. Amazon.com Inc (2:21-cv-00693-JHC (W.D. Wash. Mar. 25, 2025).
[14] Case AT.40588, Teva Copaxone, of 31 October 2024.
[15] See communicated case AKIOLIS GROUP c. FRANCE, ECHR case no 22585/22, concerning the French Competition Authority (FCA)’s seizure of in-house lawyers’ ‘internal audit’ compiling materials in anticipation of an antitrust investigation, and subsequent rulings upholding the FCA’s practice. For a case which supports the extension of legal professional privilege on the basis of on constitutional rights, see, for instance, Law Society of Ireland v Competition Authority [2005] IEHC 455.