As per Article 15 of the Law No. 4054 on Protection of Competition, the Turkish Competition Authority (“TCA”) can conduct on-site inspections (on-the-spot inspections/dawn raids) at the undertakings’ premises to gather evidence in relation to an alleged competition law violation. While carrying out this duty, the TCA’s officers are authorized to examine and take the copies of any document that they deem related to the relevant inquiry, including e-mail correspondences, reports, company books, notebooks. However, this authority does not extend to the documents that are covered by the legal professional privilege (“LPP”), which concern the relevant undertakings’ right to defence.
Although not regulated under a specific legislation yet, the TCA has been applying LPP for several years [e.g. the Turkish Competition Board’s Warner Bros (19-04/36-14; 17.01.2019), Enerjisa (16-42/686-314; 06.12.2016), Dow Turkey (15-42/690-259; 02.12.2015) decisions], as this a widely accepted privilege acknowledged by the most of the competition law authorities worldwide.[1] As per the TCA’s practice in recent years, the principles attributed to the LPP in Turkish competition law can be outlined as follows:
- The documents should concern the right to defence: Only the correspondences and documents that form a legal advice that directly concern the client’s right to defence are covered within the scope of the LPP. For instance, while a legal opinion on whether a specific agreement constitutes a competition law violation benefits from the LPP, an opinion on how to violate/circumvent the law does not.
- Independent attorney: To enjoy the LPP, a legal advice should be provided by an independent attorney. In other words, correspondences between the in-house attorneys and other employees or documents including the legal advices of the in-house attorneys are not covered by the LPP.
Providing a direct legal shield that covers the clients’ defence rights by drawing a wall between the TCA and the privileged documents, LPP differs from the protections stipulated under Article 130 of the Law No. 5271 on Criminal Procedure and Article 36 of the Law No. 1136 on Attorneyship since those two provisions indirectly protect the client’s right to defence by providing the attorneys with the right to decline the requests from the governmental authorities to disclose the documents concerning the client’s right to defence.
[1] As an example see the International Competition Network’s Framework on Competition Agency Procedures (2019): https://www.internationalcompetitionnetwork.org/wp-content/uploads/2019/04/ICN_CAP.pdf
The information given in this note are aimed only at providing information, and does not serve as a legal opinion under any circumstances.