This article examines whether Legal Professional Privilege (LPP) should be extended to in-house lawyers’ advice, drawing on the European Commission’s Competition Policy Brief No 1/2025, published on 10 November 2025. Based on EU case law and the position in the Member States, it concludes that such an extension would not be justified under EU law or from an enforcement policy perspective.
Current Position of the EU
Under EU law, Legal Professional Privilege (LPP) applies only to communications with independent, EU-qualified lawyers and mainly protects written communications prepared for the client’s rights of defence. In Akzo Nobel, following AM&S, the Court of Justice confirmed that communications involving in-house lawyers are not protected, as an employment relationship is incompatible with the necessary requirement of independence. This principle, rooted in the lawyer’s role in the administration of justice, has been consistently reaffirmed in subsequent EU case law.
Regulation 1/2003
During the evaluation of Regulation 1/2003, some stakeholders proposed extending Legal Professional Privilege (LPP) to in-house lawyers, arguing that this could enhance compliance with Articles 101 and 102 TFEU and reflect developments in certain Member States. The authors of the DG COMP Competition Policy Brief contest these claims, noting that only five Member States recognise in-house LPP, and only under limited conditions, while most continue to follow EU case law excluding such protection. They further argue that extending LPP could weaken effective enforcement, given the close employment relationship of in-house lawyers, and highlight risks of abuse, illustrated by U.S. case law and instances where infringements were uncovered through in-house counsel correspondence.
Conclusion
The authors of the DG COMP Competition Policy Brief conclude that extending Legal Professional Privilege to in-house lawyers would undermine effective enforcement without clear compliance benefits, as full professional independence remains a fundamental and unchanged requirement for LPP.