On 10 November 2025, the European Commission (the Commission) published a “policy brief” (the Policy Brief; copy attached) stating its position regarding the scope of legal professional privilege (LPP) and the suggestion of extending it to include communications of in-house lawyers. Disappointingly, the Commission continues to interpret LPP restrictively, limiting its scope to three categories of documents:

• “written communications exchanged between a client and that client’s independent, EU-qualified, lawyer for the purposes of the client’s rights of defence”;
• “documents circulated within an undertaking that do no more than report the text or content” of the communications under (i); and
• “preparatory documents created exclusively for seeking legal advice from an independent, EU-qualified, lawyer in the exercise of the rights of defence”.

The Commission strongly rejects the extension of LPP to communications of in-house counsel:

• The Commission dismisses the argument that Member States increasingly grant LPP to advice given by in-house counsel. Its Policy Brief contains a table which shows that only five EU Member States currently do so (Belgium, Ireland, Hungary, The Netherlands and Portugal).
• The Commission rejects the claim that the protection afforded to in-house counsel communications should depend on the situation in each Member State: LPP protection only concerns independent lawyers, i.e., lawyers (i) not bound to their client by a relationship of employment; and (ii) not employed by an “entity connected to the party he or she represents”.
• The Commission discards the argument that protecting the communications of in-house counsel would increase compliance with the competition rules. The Commission argues that, on the contrary, “in-house LPP is liable to be abused […] to conceal or even facilitate wrongdoing” due to the integration of in-house counsel in the company.
• Additionally, the Commission considers that extending LPP to in-house counsel communications would make investigations “lengthier and more cumbersome” due to a higher volume of unrelated communications which would have to be filtered out of the scope of LPP.

The Policy Brief comes in the wake of the evaluation of Regulation 1/2003 completed in September 2024. During this assessment of the EU’s set of basic rules of competition procedure, the issue of extending the scope of LPP to communications of in-house counsel had been raised.
While the Commission’s preference for a restrictive interpretation of LPP is not surprising, its approach raises fundamental questions.

For instance, the Commission limits the scope of LPP to investigations, implicitly excluding legal advice. However, in the judgment delivered in the Orde van Vlaamse Balies case (C-694/20), the Court of Justice of the European Union (CJEU) held in December 2022 that the “specific protection which Article 7 of the Charter and Article 8(1) ECHR afford to lawyers’ legal professional privilege […] is justified by the fact that lawyers are assigned a fundamental role in a democratic society” (C-694/20, para. 28) and includes “not only the activity of defence but also legal advice […] both with regard to its content and to its existence” (C-694/20, para. 27). The Commission does not explain how the restrictive position which it favours in the Policy Brief can be reconciled with this recent pronouncement of the CJEU other than by ostensibly dismissing the Orde van Vlaamse Balies case as a matter of “administrative cooperation in the field of taxation” (footnote 20 of the Policy Brief).

In the same vein, the Commission limits the benefit of LPP protection to EU-qualified lawyers. However, in Orde van Vlaamse Balies, the CJEU equates the LPP protection granted by Article 7 of the Charter of Fundamental Rights to that of Article 8(1) ECHR. The ECHR applies in 46 countries, including countries that are not members of the EU. This begs the question of whether advice given by independent lawyers qualified in a non-EU country that is a signatory to the ECHR is also protected by LPP. Again, the Policy Brief does not address this issue.

In Belgium, LPP extends to legal advice provided by registered members of the Institute of Company Lawyers (Instituut voor bedrijfsjuristen / Institut des juristes d’entreprise – the ICL). However, the restrictive interpretation followed by the Commission undermines the effectiveness of the broader protection granted by Belgian law: while the advice provided by members of the ICL is protected from the Belgian Competition Authority, it remains within the reach of the Commission. This means that, depending on which authority opens an investigation, legal advice of in-house counsel registered with the ICL could be used against companies in the event of a competition law investigation. In practice, members of the ICL would therefore be well advised to treat their legal advice as if it were deprived of any protection.