Between Akzo and the Charter: where EU legal privilege stands after the Commission’s new policy brief

In its latest Competition Policy Brief, European Commission staff (DG Comp) re-examines one of the most-debated questions in EU competition enforcement: should legal professional privilege (LPP) extend to in-house counsel?

Having weighed the arguments, the DG Comp authors propose to leave the existing system untouched: LPP under EU competition law should, in their view, remain reserved for independent, EU-qualified external counsel. While not (yet) an official position of the European Commission, the content of the brief carries significant weight.  

LPP protects the confidentiality of communications between clients and their lawyers. It allows companies and individuals to seek legal advice freely, without fear that those exchanges will later have to be disclosed to authorities or third parties. The precise limits of this protection – and in particular whether it covers lawyers employed within a company – have long been the subject of debate in Europe.

A reaffirmation of the Akzo line

Published in November 2025 as part of the ongoing evaluation of the Commission’s rulebook for competition enforcement, Regulation 1/2003, the Commission’s brief revisits the judicial foundations of LPP under EU competition law.

The Regulation itself contains no express provisions on LPP: the concept was created by the EU Courts as part of the right of defence and the need for fair administrative proceedings. In AM&S (Case 155/79, 1982), the Court of Justice recognised privilege as a procedural safeguard; in Hilti (Case T-30/89, 1990), the General Court confirmed that protection could extend to internal summaries of external legal advice; and in Akzo Nobel (Case C-550/07 P, 2010), the Court reaffirmed that LPP applies only to communications with independent external lawyers who are not bound by an employment relationship with their client.

DG Comp’s policy brief therefore asks whether these judge-made principles – developed before the EU Charter of Fundamental Rights came into force – still reflect today’s enforcement reality and should potentially be revisited.

After reviewing EU Member State practice, DG Comp concludes that there is no European convergence towards recognising privilege for in-house company lawyers and therefore no basis to depart from existing case law.

The brief reaffirms that independence – by its very nature – excludes employment within the client organisation: advice from company-employed counsel, while integral to corporate compliance, cannot be regarded in the Commission’s view as fully detached from the company’s commercial interests.

Why DG Comp declined to move

The brief emphasises that, despite some national developments in that space, only a handful of Member States – Belgium, Ireland, Hungary, the Netherlands and Portugal – recognise some form of in-house privilege.

Second, the brief highlights the practical and evidential difficulties that the authors believe would arise if privilege were extended to internal legal communications.

Allowing in-house privilege, it argues, would require case teams to conduct resource-intensive, document-by-document reviews to determine whether each internal message genuinely constitutes legal advice or merely business strategy. That would not only slow down investigations but allegedly create new risks of over-claiming, since the line between legal and commercial functions are often blurred in practice.

By contrast, claims of LPP involving external counsel are in DG Comp’s view typically easier to assess and therefore lend themselves to more predictable enforcement: the circle of potentially protected documents is narrower, and the risk that non-legal material is inadvertently shielded is considerably lower.

The bigger picture: from procedural safeguard to constitutional right

It is additionally noteworthy that the brief avoids any substantive discussion of recent landmark judgments on LPP such as Orde van Vlaamse Balies (Case C-694/20, 2022) and Ordre des avocats du barreau de Luxembourg (Case C-432/23, 2024) which have changed the way EU law understands privilege itself.

As we explored in our earlier Freshfields blogs – Mind your privilege: recent developments in the law of privilege (May 2023) and Privilege in the context of European tax investigations: Court of Justice confirms tax advice is privileged (September 2024) – the Court moved beyond the procedural origins of LPP and anchored lawyer–client confidentiality in Article 7 of the Charter of Fundamental Rights – the right to privacy and to confidential communications.

It is therefore striking that the Commission’s brief does not meaningfully engage with this Charter-based jurisprudence, which arguably broadens the temporal and substantive scope of LPP also in the antitrust context. Instead, the brief widely ignores this important development, relying on the traditional AM&S, Hilti and Akzo line of cases. This omission may – at best – be seen as a missed opportunity to align competition enforcement with the broader evolution of privilege in EU law.

The Court’s recent case law suggests that privilege is no longer merely a procedural tool to protect defence rights, but part of the constitutional framework that safeguards trust between citizens and their legal advisers.

Seen together, the Commission’s brief and the Court’s jurisprudence express two complementary perspectives:

• one procedural, ensuring that enforcement remains effective and predictable;
• one constitutional, affirming that citizens and businesses can seek legal advice in confidence.

Looking ahead

For now, DG Comp’s position leaves the Akzo doctrine intact. Advice from company-employed in-house counsel remains outside the scope of EU privilege in competition proceedings.

But the Commission’s choice of consistency over innovation without meaningfully engaging with the recent EU jurisprudence should not obscure the broader policy discussion now taking place across the EU and beyond.

Several jurisdictions – including the UK and the US – already recognize privilege for in-house counsel, and the Court’s Charter jurisprudence may in time prompt a similar evolution at EU level.

Regarding its own interpretation of LPP, the Commission’s brief thus offers clarity, but not closure. The fact that the Commission chose in its brief to confirm the previous procedural framework highlights the growing tension between that framework and the Charter-based approach emerging in the Court’s case law. Whether the EU will ultimately follow the path of other jurisdictions remains to be seen – but the conversation about how far legal privilege should reach is clearly not over.