Competition and EU Law | Gulating Court of Appeal Clarifies Legal Professional Privilege for In-House Counsel in Cases Investigated by the Norwegian Competition Authority

In a ruling on 26 June 2025, the Gulating Court of Appeal confirmed that internal (in-house) counsel in Norwegian companies are protected by the same absolute legal professional privilege (“LPP”) as external counsel, also when the Norwegian Competition Authority (“NCA”) investigates potential infringements of the competition rules in the EEA Agreement. The decision reaffirms that fundamental rights of confidentiality for legal advice apply during NCA’s investigations, irrespective of whether the advice provided is provided by a counsel employed within the company subject to the investigation or retained externally. The Court’s findings are also significant for other EU/EEA national jurisdictions that provide LPP for in-house lawyers, as the Court affirms that there is no basis in EU/EEA law to require national competition authorities to exclude LPP for correspondence with internal counsel.

Background

The NCA is mandated to enforce not only national competition rules under the Norwegian Competition Act (Sections 10 and 11), but also the corresponding competition rules in the EEA Agreement (Articles 53 and 54). This follows from the EEA Competition Act, which implements Article 40 of Part II of Protocol 4 to the Surveillance and Court Agreement (“SCA”). Article 40 mirrors a corresponding obligation on the EU-side, cf. Article 35 no. 1 of Regulation 1/2003.

Under Norwegian law, the seizure of correspondence with lawyers is, as a starting point, prohibited due to LPP. This includes both external lawyers and in-house lawyers, which means that the NCA may not seize any legal correspondence as part of its enforcement activities, for example during dawn raids.

In EU law, the European Court of Justice (“ECJ”) has confirmed that LPP does not extend to in-house lawyers. The European Commission (“Commission”) and the EFTA Surveillance Authority (“ESA”) can therefore seize correspondence with in-house lawyers when enforcing EU/EEA competition rules (TFEU Arts. 101 and 102 and EEA Arts. 53 and 54). The same applies if ESA or the Commission request assistance from the NCA to enforce the EU/EEA rules in Norway, e.g. to assist with a dawn raid.

As both ESA and the NCA enforce the EEA Agreement’s competition rules in Norway, there is a difference in what legal correspondence is protected by LPP from seizure by ESA and the NCA.

In an ongoing investigation, the NCA has sought to challenge this difference, arguing that EEA law requires that also the NCA is vested with the competence to seize in-house lawyers’ correspondence when enforcing EEA competition rules.

The investigation in question began when the NCA carried out a dawn raid at Kommunal Landspensjonskasse Gjensidig Forsikringsselskap (“KLP”) in February 2022, suspecting abuse of a dominant position in breach of the Norwegian Competition Act Article 11 and Article 54 of the EEA Agreement. Among the seized documents was correspondence with KLP’s in-house lawyers, which KLP claimed were covered by LPP and thus exempt from disclosure.

The NCA brought the question before the District Court, where KLP successfully argued that its internal legal correspondence was covered by LPP and inadmissible evidence; however, the NCA appealed the case to Gulating Court of Appeal.

The case was essentially the same before the Court of Appeal as before the District Court, except that the Norwegian Bar Association, with the assistance of BAHR, intervened in support of KLP. During the preparation of the case, the NCA requested that the Court of Appeal ask the EFTA Court for an advisory opinion, but this was rejected by the Court.

The Court of Appeal’s assessment

Initially, assessing Norwegian law viewed in isolation from EEA law, the Court reaffirmed that Norwegian law, including relevant statutes and prior Supreme Court rulings, unequivocally grants the same privilege to in-house and external lawyers, including when the NCA investigates violations of Articles 53 and 54 of the EEA Agreement.

The Court then went on to assess whether EEA law required a different outcome – that LPP does not cover correspondence with in-house lawyers when national investigations are based on EEA competition rules.

The Court recognised that, while EU/EEA law grants LPP only to correspondence with external lawyers and not in-house lawyers when investigations are undertaken by the Commission (or ESA), EEA law does not override national procedural autonomy when the NCA enforces EEA competition rules.

EEA law has not harmonised rules on LPP in national investigations

The Court affirmed that EU/EEA law does not fully harmonize EU/EEA states’ rules on LPP. Neither Regulation 1/2003, nor the equivalent provisions in the SCA applicable on the EFTA-side, mandate specific national rules on LPP, but instead prescribe that national enforcement shall be in accordance with national law. The Court also affirmed that ECJ case law on LPP concerning Commission/ESA investigations is limited to investigations by those bodies, cf. the judgment in case C-550/07 P Akzo-Nobel. This finding may have significance for other national internal jurisdictions in the EU/EEA that grant LPP for in-house lawyers.

Privilege of in-house legal communications is compatible with the principle of effectiveness “in its ordinary form”

As the rules on LPP are not harmonised, the question was thus whether the EEA principle of effectiveness trumps the Norwegian national rules on LPP, in that it becomes “virtually impossible or excessively difficult” for the NCA to enforce EEA competition rules if LPP extends to in-house lawyers.

According to the Court, it was clear that the principle of effectiveness “in its ordinary form” does not mandate that EEA law on LPP trump national law.

No basis in EEA law for a stricter efficiency requirement

The crucial question was therefore whether there were grounds for a stricter efficiency requirement in the area of EU/EEA competition law, on the basis of Article 40 of Part II of Protocol 4 to the SCA, which reflects Regulation 1/2003. The rules prescribe that the EEA states must designate national competition authorities to apply EEA competition rules in such a way that the rules are enforced effectively and uniformly.

After a thorough review of the wording of Reg. 1/2003, the later ECN+ Directive and ECJ case, the Court of Appeal did not find any notion that suggested a stricter efficiency requirement in the area of EU/EEA competition law. The Court pointed out that several EU member states have national procedural rules that provide LPP for in-house lawyers. Furthermore, it found that the effect of a stricter efficiency requirement, which would mandate the possibility to seize communication with in-house lawyers, would go beyond the intended scope of Regulation 1/2003 and in effect harmonise LPP in the EEA.

Reviewing ECJ case law, the Court stated explicitly that the case law appeared to imply that the ECJ had accepted that LPP would differ among EEA states, cf. the judgment in case C-550/07 P Akzo-Nobel. Other ECJ case law relied upon by the NCA concerning enforcement of EEA competition rules at national level and national procedural autonomy were found to have little relevance, as they did not concern interference with fundamental and established legal rights of individuals and companies, cf. cases C-439/08 Vebic, C-681/11 Schenker, C-428/14 DHL og C-57/21 RegioJet.

Having found no grounds for a stricter efficiency standard in the area of EU/EEA competition law, the Court of Appeal unanimously rejected the NCA’s appeal and upheld the District Court’s decision that LPP for in-house legal correspondence is compatible with EEA law.

The NCA has decided not to appeal the Court of Appeal’s decision, hence the decision is final.

BAHR’s view

Upholding the District Court’s decision, the ruling from Gulating Court of Appeal is an important confirmation that the Norwegian legal tradition of LPP also applies to in-house lawyers, even when the NCA enforces the EEA competition rules. This means that companies can use in-house lawyers without having to fear that the correspondence will unconditionally be available to the NCA. This clarification provides predictability for companies that have extensive in-house legal advice, whether it concerns compliance, transactions or other business-critical considerations.

However, it is important to note that ESA, which also enforces competition law in Norway, is not restricted in the same way and its rules on LPP do not extend to in-house counsel correspondence. When it comes to correspondence with external lawyers, it is also important to note that under EEA law, the correspondence is only protected as long as it concerns a lawyer licensed in the EEA.

Due to the Norwegian rules on LPP, companies active in Norway should

maintain a clear distinction between correspondence with in-house lawyers concerning legal matters, and other general personnel or operational correspondence. The protection for in-house lawyers presupposes that the correspondence actually concerns legal advice from lawyers with a Norwegian licence.

The Court’s findings are also significant for other EU/EEA jurisdictions that provide LPP for in-house lawyers. The Court’s analysis of EU/EEA law is generally applicable and means that there is a strong argument to be made that EU/EEA law does not require that such other EU/EEA jurisdictions exclude LPP for in-house lawyers in national investigations of EU/EEA competition rules.