The recent publication of Competition Policy Brief No. 1/2025 rekindles an old discussion within European competition law: how far the protection offered by professional secrecy goes in investigations conducted by the Commission, and why in-house lawyers remain excluded from that protection. The document reaffirms the classical case-law and clarifies its underlying rationale.
Although the Brief states that it does not express an official position of the Commission, its content reinforces settled case-law and unequivocally asserts that there are no legal or policy-based reasons to extend professional privilege to in-house lawyers in EU competition investigations.
The document revisits the case-law pillars shaping the EU regime on professional secrecy:
- AM & S Europe vs. Commission (1982)
Recognized professional secrecy as a corollary of the rights of defense, limited to communications with independent lawyers qualified in the EU.
- Akzo Nobel Chemicals and Akcros Chemicals vs Commission (2010)
Reaffirmed that in-house lawyers do not benefit from professional privilege before the Commission, even if registered with a professional bar.
The decisive element remains the notion of “full independence”, requiring not only ethical duties but also the absence of an employment relationship.
Advocates of changing this understanding and revising Regulation 1/2003 argued that several Member States were moving towards recognizing such privilege for in-house lawyers. However, the Brief contradicts this view with data collected from national authorities, showing that:
- Only 5 countries grant some form of protection to internal communications in national investigations: Belgium, Ireland, Hungary, the Netherlands and
- Most do not recognize any such privilege.
- A few explicitly exclude it (Poland, Finland, Latvia).
- Dominant practice strictly follows the Akzo judgment.
Thus, the document refutes the myth of a predominant national trend justifying a revision of the EU regime.
In Portugal, professional secrecy constitutes a foundational duty-right of the legal profession, applying to all lawyers (including in-house lawyers) and generally protecting such communications from being used as evidence.
However, this deontological protection does not automatically extend to the EU level. In investigations conducted by the European Commission, only the legal professional privilege regime defined by AM&S / Akzo applies – a distinct mechanism, limited to communications with independent external lawyers, leaving communications with in-house counsel unprotected.
The document also reiterates that the proximity of in-house lawyers to the business is a “double-edged sword”: it improves risk understanding but may hinder opposition to potentially unlawful decisions within the company.
The decisive argument is illustrated through concrete examples, showing how extending professional secrecy to in-house lawyers could have limited or even prevented major investigations. The following real cases are highlighted:
- Teva / Copaxone case (European Commission, 2024)
The investigation identified internal lawyers’ documents involved in designing the abusive strategy to protect Copaxone, including misuse of the divisional patent system and dissemination of potentially misleading information about competing products.
- Merck Sharp & Dohme case (CNMC, 2022)
The Spanish competition authority identified handwritten notes from the in-house legal director as decisive evidence in analyzing a pattern of litigation allegedly used as a tool to restrict competition.
These real cases make the Brief’s message clear: some infringements would not have been uncovered if internal communications had been protected by secrecy.
While academic debate may remain open, the European position is closed.
The Competition Policy Brief crystallizes the Union’s stance:
- AM&S / Akzo case-law remains fully applicable.
- There is no national trend calling for revision.
- Effectiveness of investigations and enforcement prevails.
- Professional secrecy at EU level remains an exclusively external privilege, dependent on full professional independence.
For corporate legal departments, the message remains clear: in EU competition law, nothing has changed and nothing suggests it will.