A European Commission Competition Policy Brief published on 10 November 2025 entitled Legal professional privilege in competition law investigations: has the status of in-house lawyers changed? (the “Policy Brief”) has concluded that an extension of legal professional privilege (“LPP”) to in-house lawyers in European Commission competition law investigations would not be justified from the perspectives of EU law or of the European Commission’s enforcement policy.
Current position
Under Irish national law, communications with in-house counsel attract the protection of LPP where the constituent elements of the legal test for privilege are otherwise met, including in the case of competition law investigations under national law. By contrast, communications with in-house lawyers are not privileged in European Commission competition law investigations under EU law in line with the Court of Justice’s 2010 judgment in Akzo Nobel Chemicals Ltd v Commission (Case C-550/07 P) [2010] ECR I-08301.
Akzo revisited
In the course of an evaluation of 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 (the “Regulation”) which completed in 2024, certain stakeholders submitted that the principles set out in the Akzo judgment should be revisited so that in-house lawyer correspondence could benefit from LPP in European Commission competition law investigations.
The main arguments relied upon were, firstly, the increasing recognition of LPP for communications involving in-house lawyers across Member States and secondly, ‘in-house LPP’ would increase compliance with competition rules given the emphasis on self-assessment in the Regulation. Both arguments were rejected in the Policy Brief.
The Policy Brief found no notable upward trend among Member States to recognise LPP for in-house lawyers and observed that the national law of most Member States, with the exception of Ireland, Belgium, Hungary, the Netherlands and Portugal, does not recognise LPP for in-house lawyers in competition law investigations. In any event, the Policy Brief noted that the situation in Member States is not determinative of whether in-house lawyer communications should fall with the scope of LPP in European Commission competition law investigations under EU law. It was highlighted that the legal interpretation in Akzo was based on a fundamental finding that by its very nature, an employment relationship precludes the requisite full independence required to attract the protection of LPP in the context of European Commission competition law investigations under EU law. The Policy Brief observes, “This point of principle is not liable to change”.
As regards the argument that the self-assessment brought in by the Regulation justified a change to the requirement of ‘full independence’, the Policy Brief observed that there is no evidence that companies operating in jurisdictions that do recognise in-house lawyer LPP are overall more compliant with competition laws than those operating in those jurisdictions that do not. It was also noted that the Akzo judgment post-dates the entry into force of the Regulation and therefore already takes account of the contribution that in-house lawyers can make to compliance by their employers with EU competition law rules.
Potential impact of extension of LPP
The Policy Brief ultimately found the arguments for the extension of LPP to communications with in-house lawyers “unconvincing and vague as regards the claimed benefits” whilst noting clear risks for the effectiveness of competition investigations if LPP was extended to in-house lawyer communications. In this regard, the Policy Brief noted the challenge of defining the precise scope of in-house LPP in a way that would not be prone to abuse and expressed the view that an extension of LPP to in-house counsel would likely make investigations lengthier and more cumbersome.
Concluding thoughts
This Policy Brief affirms that there is no appetite to expand the protection of LPP to in-house counsel in the context of European Commission competition law investigations under EU law and that the exclusion of in-house counsel from LPP remains a cornerstone of EU competition law enforcement. The position will therefore remain that the ability of in-house counsel to rely on the protection of LPP in the context of a competition law investigation in Ireland will vary depending on whether the investigation is conducted by the Competition and Consumer Protection Commission under Irish law or the EU Commission under EU law.
If you would like to discuss any of the matters covered in this briefing, please get in touch with any member of our Litigation, Dispute Resolution, and Investigations Group or our Competition and Regulated Markets Group.