EU Legal Professional Privilege and In-house Lawyers

Under current EU competition rules, communications with in-house lawyers are not privileged. A recent European Commission policy brief on privilege in competition proceedings recommends against expanding privilege to include those communications. Our Dispute Resolution and Competition, Antitrust & Foreign Investment teams explain why you should continue assuming that communications with in-house lawyers are not privileged in EU competition proceedings, although the position has yet to be confirmed in the context of other EU regulatory frameworks like the DMA, DSA, and the AI Act.

Executive Summary

• A recent European Commission policy brief argues that the rules concerning privilege in EU competition proceedings should not be expanded to make certain communications with in-house lawyers privileged.
• Under current EU rules, communications with in-house lawyers are not privileged. While EU privilege rules have been primarily developed in the context of competition proceedings, the position has yet to be confirmed in the context of other EU regulatory frameworks, including the Digital Markets Act (DMA), Digital Services Act (DSA) and the AI Act.
• Ireland is one of only five Member States in which communications with in-house lawyers can be privileged as a matter of national law.
• However, when dealing with an EU regulatory framework, businesses should assume that communications with in-house lawyers may not be privileged and should review protocols around privileged information.

Background

Legal professional privilege (LPP) rules under EU law have been primarily developed and applied in case law concerning competition law enforcement proceedings.[1] EU LPP rules permit certain communications between an undertaking and its external EEA-qualified legal counsel to be privileged. To be privileged, the communications must be to seek or give legal advice. They no longer need to be related to the exercise of a client’s rights of defence in the context of an investigation or proceedings, as was previously the case.

Crucially, LPP does not apply to communications with in-house lawyers. The Court of Justice of the European Union (CJEU) has ruled against affording LPP to communications between undertakings and their in-house lawyers on the basis that the protection offered by LPP emanates from independence. Independence, importantly, is precluded by the employment relationship between an in-house lawyer and their employer. EU LPP is therefore narrower than the position under Irish law, which has long recognised that privilege can attach to communications between an undertaking and its in-house lawyers.

Analysis

To coincide with the 20^th anniversary of Regulation (EU) No 1/2003, the European Commission has conducted an evaluation of the Regulation.[2] The Commission received submissions from stakeholders, including industry and in-house lawyers, requesting that any revisions to the Regulation also extend LPP to cover certain communications with in-house lawyers. Following on from those submissions, in November 2025, the Commission released Competition Policy Brief No 1/2025.[3] While not legally binding and conveying only the views of its authors and not the Commission, the Policy Brief provides helpful insight on LPP and how it is viewed under EU law generally. In particular, it sheds light on how LPP is viewed outside of competition enforcement proceedings and in the context of enforcement of newer EU regulatory frameworks, such as the DMA, DSA, and the AI Act.

The Policy Brief summarises two arguments in favour of extending LPP. First, an increasing number of EU Member States have extended LPP to certain communications with in-house lawyers. Secondly, the Regulation emphasises self-assessment, so extending LPP would enhance compliance with EU competition law because it would better empower undertakings to self-assess compliance. The authors of the Policy Brief dismiss each argument for the following reasons:

• First, the authors clarify that only five EU Member States (Ireland, Belgium, Hungary, the Netherlands, and Portugal) have extended LPP to certain communications with in-house lawyers in investigations involving domestic competition authorities. Therefore, there was “no predominant trend in Member States’ national laws” towards extending privilege to communications with in-house lawyers.
• Second, the current rules concerning LPP already consider the self-assessment issue because they were largely developed after the Regulation. The leading case concerning LPP and in-house lawyers, Akzo Nobel Chemicals[4], was decided in 2010 - seven years after the Regulation was enacted. In addition, the lack of independence in the relationship between an undertaking and its in-house lawyers, due to the employment relationship, precludes a candid assessment of compliance. It therefore makes it difficult to oppose questionable compliance measures.

The Policy Brief includes several additional arguments against extending LPP to cover certain communications with in-house lawyers. These include challenges in defining the scope of extended LPP so that it would not be “prone to abuse”, and that an extended LPP would likely make investigations “lengthier and more cumbersome.”

Conclusion

The Policy Brief is the most recent commentary on EU LPP rules. In our view, there are three significant takeaways.

First, an extension of EU LPP to cover communications with in-house lawyers is not likely, but it has yet to be confirmed if existing LPP limitations also apply in the context of other EU regulatory frameworks, such as the DMA, DSA, and the AI Act. However, it would be prudent for businesses to assume that communications with their in-house lawyers may not be privileged under other EU law regulatory regimes and review their protocols around legally privileged information.

Second, Ireland is the only EU Member State with a common law legal system where communications with in-house lawyers can be protected by LPP. While four other EU Member States recognise a form of LPP for communications with in-house lawyers, not all of them have done so for as long as Ireland has, where it is a long-established principle. Indeed, two of those Member States, namely Hungary and Portugal, have applied LPP to in-house lawyers for less than 20 years. In Hungary, LPP was only extended to in-house lawyers in 2018. While Irish LPP rules on communications with in-house lawyers will not apply in competition enforcement proceedings by the Commission, they will apply when dealing with Irish regulators. Businesses established in Ireland will continue to benefit from LPP protections that are not recognised in most other EU Member States.

Third, the European Commission is likely to take the position that the scope of EU LPP in the context of enforcement of newer EU regulatory frameworks, such as the DMA, DSA and the AI Act, is the same as in competition law proceedings, so this issue is likely to end up before the EU courts.

For more information and expert advice concerning LPP and protocols around privileged communications, please contact a member of our Dispute Resolution and Competition, Antitrust & Foreign Investment teams.

The content of this article is provided for information purposes only and does not constitute legal or other advice.

[1] While EU LPP rules have been developed in EU competition law proceedings, it is likely that they will apply in the context of other EU regulations or proceedings, due to the absence of LPP rules being developed in those contexts as well as LPP being discussed in the context of EU taxation law (see generally case C-694/20, Orde van Vlaamse Balies and Others [2022], ECLI:EU:C:2022:963).

[2] Commission seeks feedback for the revision of EU antitrust enforcement framework (10 July 2025): https://ec.europa.eu/commission/presscorner/detail/en/ip_25_1795

[3] Issue 1: Legal professional privilege in competition law investigations: has the status of in-house lawyers changed? (10 November 2025): https://competition-policy.ec.europa.eu/publications/competition-policy-briefs_en

[4] Akzo Nobel Chemicals and Akcros Chemicals v Commission, C-550/07, judgment of 14 September 2010.