Turkey: Attorney – Client Privilege In Competition Law Reinstated By The Turkish Court

Last Updated: 28 March 2018
Article by Sahin Ardiyok and Gediz Çınar

On November 16, 2017, the Administrative Court of Ankara took a decision which will set a crucially important precedent by accepting our claims with regards to recognition of attorney-client privilege in competition proceedings and also enforcing the reputation of the legal profession. The Court examined an action for annulment regarding a decision of the Turkish Competition Authority (TCA), which stirred great concern as to the status of documents that are actually protected by the attorney-client privilege.

On a brief note, the TCA, at the end of 2016, announced the initiation of a preliminary investigation against a retail electricity provider to determine whether the undertaking abused its dominant position through exclusionary behavior. During the course of the preliminary inquiry, the TCA dawn raided offices of investigated parties so as to gather information necessary to build a case. During the dawn raid, case handlers discovered a report prepared by lawyers of an independent law firm within the scope of a competition compliance program. Despite objections that said documents are protected under attorney-client privilege and therefore shall be returned, case handlers obtained a copy of the document in a sealed envelope. The TCA later evaluated our objections and the content of these documents and resolved that they shall not enjoy the protection provided by attorney-client privilege. Accordingly, these privileged documents were used by the case handlers in drafting the Investigation Report. This decision of the TCA, which was later appealed, naturally caused great concern with regard to the protection of privileged documents in competition proceedings.


Privilege attributed to communications between attorney and client in Turkey originally stem from the Attorneyship Act. The said legislation provides that attorneys are in fact prohibited from disclosing information which has been confided in them or that they learned in the performance of their duties as an attorney. It should be noted that attorney-client privilege constitutes an inherent element of the right to defense, which is recognized as a fundamental right as per the Constitution of the Turkish Republic. Such privilege is strictly preserved under criminal procedure as well. So much that the Criminal Procedure Act stipulates the immediate return of privileged documents seized during a criminal investigation, in case the court decides that the document is a product of the attorney-client relationship.

It is in fact surprising that attorney-client privilege, which is an internationally recognized concept, is not explicitly regulated under the Act on the Protection of Competition (Competition Act). Moreover, the Competition Act confers broad powers to the TCA to request information from public institutions and organizations, undertakings and associations of undertakings. The TCA is also authorized to conduct on the spot inspections at premises of undertakings during which interested parties are obliged to provide copies of information, documents and books requested. Despite extensive authorities conferred to the TCA and the lack of an explicit provision regarding attorney-client privilege in the Competition Act, the privilege recognized as a constitutional right and relevant provisions of the Criminal Procedure Act are without a doubt applicable for competition proceedings. In other words, the attorney-client privilege determines boundaries of TCA's powers.

Attorney-Client Privilege in Competition Law

Despite the absence of provisions regulating attorney-client privilege in the Competition Act, it is evident that such privilege is recognized for competition proceedings both by the European Court of Justice1 and by the TCA2 under the following conditions:

  1. The exchanges between the attorney and the client shall be connected to the client's right to defense;
  2. The exchanges shall emanate from an independent lawyer.

Therefore, naturally, documents and information advising/outlining how to circumvent competition rules are not protected by the attorney-client privilege. Likewise, documents and information emanating from a lawyer bound to the client by a relationship of employment, such as an in-house counsel, are not privileged.

Importance of the Court Decision

The second requirement of being an independent lawyer is rather easy to determine.  Whereas, determining the scope of client's right to defense is left with the discretion of competition authorities, and it can often be abused. The TCA in this case resolved that the scope of a client's right to defense—and thus the privilege—extends only to documents produced by an independent lawyer during an investigation. Accordingly, the TCA referenced the Akzo Nobel Decision where documents produced within the scope of a competition compliance program were denied privilege. However, the TCA misinterpreted the decision of the European Commission and failed to acknowledge that said documents were denied privilege because they were not produced by an independent lawyer.

Accordingly, the Administrative Court set a precedent for following proceedings by deciding that documents acquired during the dawn raid shall enjoy privilege and shall be returned to the undertaking. All in all, the Administrative Court decision provided significant clarity by:

  • Recognizing that the attorney-client privilege is indisputably applicable for competition proceedings;
  • Conceding that the privilege extends to legal advice given before the initiation of an investigation; and
  • Acknowledging that reports prepared within the scope of a competition compliance program do not aim to provide guidance for avoiding competition rules but are rather closely relate with the client's right to defense.


1. Case C-550/07, Akzo Nobel Chemicals Ltd. & Akros Chemicals Ltd. v. European Commission, Case 155/79, AM&S Europe Limited v. Commission.

2. Dow Decision of the TCA dated 02.12.2015 and numbered 15-42/690-259 and CNR Decision of the TCA dated 20.08.2014 and numbered 14-29/596-262.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions