Competition and Antitrust

By: Ecem Susoy Uygun

Introduction

Certain information and documents obtained during the investigations of the Competition Board (“Board”) may be based on the lawyer-client relationship. The extent of the information and documents based on a lawyer-client relationship protected within the framework of confidentiality principle is important. The Board’s decision dated 02.12.2015 and numbered 15-42/690-259 (“Dow Decision”)[1] with regard to whether or not some of the documents taken during on-the-spot inspections are considered within the scope of the confidentiality of written communications between lawyer and client is handled under this newsletter article.

Request for Information and On-the-Spot Inspection in Competition Law Practice

As per Art. 14 of the Act on the Protection of Competition No. 4054 (“Act No. 4054”), in carrying out the duties assigned to the Board by this Act, the Board may request any information it deems necessary from all public institutions and organizations, undertakings, and associations of undertakings. Officials of these authorities, undertakings, and associations of undertakings are obliged to provide the requested information within the period to be determined by the Board.

Pursuant to Art. 15 of Act No. 4054, in carrying out the duties assigned to the Board by this Act, the Board may perform examinations at undertakings, and associations of undertakings, in cases where it is deemed necessary. To this end, it is entitled to: (i) examine the books, any paperwork and documents of undertakings, and associations of undertakings, and make copies of the same if needed, (ii) request written or oral statements on particular issues, and (iii) perform examinations on the spot with regard to any assets of undertakings. Those concerned are obliged to provide the copies of information, documents, books and other instruments as requested.

Information and Documents Obtained Within the Scope of Dow Investigation

Certain information and documents obtained during the investigations of the Board may be the based on the lawyer-client relationship. As per the Board’s decision dated 10.11.2015 and numbered 15-40/667-M, it has been decided to open an investigation with respect to whether Dow Türkiye has infringed Art. 6 of the Act No. 4054. During the on-the spot inspection, the return of some of the documents that were taken when on-the-spot inspection was conducted as per Art. 15 of the Act No. 4054 has been requested since they were within the scope of confidentiality of written communications between lawyer and client.

As stated in the Board’s Dow Decision, “The principle of confidentiality (principle of legal professional privilege) prohibits the forced disclosure of information provided by the enterprises or persons to their lawyers and written communications made between them when receiving legal consultancy services and protect this communication. This protection aims to release the persons’ -who receives consultancy- concerns about the forced disclosure of the information and written communications that are obtained, and direct them to provide all the information that they have in their possession to their lawyers, and to exercise their rights of defence in a real sense. Therefore, the lawyers would implicitly be able to defend their clients that they represent, effectively. Additionally, this protection is in conflict with persons’ obligations to reveal all of the information on the dispute, and it otherwise contradicts truth being achieved through justice. Thus, it should be generally accepted that the limit of protection granted to such written communications must fit the purpose.”

 “Pursuant to the said principle, the written communications made between an independent lawyer who is not bound to the client by a relationship of employment, for the purposes, and in the interests of the client's rights of defence, are deemed to be professional written communications, and may benefit from the protection. This protection covers the written communications made with the independent lawyer for the purpose of exercising the client’s right of defense, as well as the document that is prepared with regard to receiving consultancy services from the independent lawyer. However, written communications that are irrelevant to exercising the client’s right of defense, with the intention to infringe upon, or to hide an ongoing infringement, or a future infringement, shall not benefit from the protection even if they are related to the preliminary investigation, investigation or inspection. Within this framework, for instance, legal advice of an independent lawyer provided to an enterprise with regard to whether or not an agreement infringes Act No. 4054 benefits from such protection; whereas, correspondence concerning the manner in which Act No. 4054 may be infringed upon shall not benefit therefrom.”

The confidentiality principle stated in the Dow Decision is discussed in the Board’s decision[2]dated 20.08.2014 and numbered 09-14-29/596-262, as well. The said decision states that “Granting legal protection to written communications made between the lawyer and the client is one of the guarantees of the right to defense and, therefore, it is often accepted as privileged in the legal arena. However, there are different applications in relation to the nature and scope of protection.”

Moreover, the AM&S Europe Ltd. v. Commission case[3] of the Court of Justice of the European Communities (“CJEC”) is addressed in decision numbered 14-29/596-262. In the said case, as per the CJEC, the confidentiality of written communications between lawyer and client are subject to two conditions. With regard to the first condition, written communications between lawyer and client must ensure that the rights of the defence may be preserved to the fullest extent. With respect to the second condition, such written communications must be made with an ‘independent’ lawyerwho is not bound to the client by a relationship of employment.

Protection and Confidentiality of Information and Documents based on the Professional Relationship between Lawyer and Client under the Turkish Legal System

There are certain regulations under the Turkish legal system with respect to the protection and confidentiality of information and documents based on the professional relationship between lawyer and client. One of these is introduced by Code of Criminal Procedure No. 5271 (“Code No. 5271”). Pursuant to Art. 130/2 of Code No. 5271, “If the attorney, whose office is searched, or the president of Bar, or the attorney representing him, objects to the search in respect to the items to be seized, at the end of the search, by alleging that those items are related to the professional relationship between the attorney and his client, then those items shall be placed in a separate envelope or a package and be sealed by the present individuals and, in the investigation phase, the judge of peace in criminal matters, or the judge or the Court in the prosecution phase, will render the necessary decision on this matter.”

Additionally, as per Art. 36 of Attorneyship Law No. 1136, “Attorneys are prohibited from disclosing information that has been entrusted to them, or that come to light in the course of performing their duties, both as attorneys, and as members of the Union of Bar Associations of Turkey and various bodies of bar associations.”

In accordance with the above-stated provisions of Attorneyship Law No. 1136 and Code No. 5271, whether or not there is an ultimate protection granted to the lawyer-client relationship is under discussion. Also, the distinction made between lawyer and ‘independent’ lawyer in the above-mentioned decisions is another issue to be discussed.

Conclusion

The Dow Decision is one of the most important decisions rendered by the Board on confidentiality of written communications between lawyer and client. Upon review of this decision, the Board’ perspective in terms of the legal protection that is granted to written communications between lawyer and client is clear. In this respect, based on the principle of confidentiality concerning written communications between lawyer and client, the Board sets forth the following conditions to be fulfilled: (i) the written communications must be made between client and independent lawyer who is not bound to the client by a relationship of employment, (ii) written communications must be made for the purposes, and in the interests, of the client’s rights of defence.