Is It Really Privileged? Legal Professional Privilege In Turkish Competition Law

Documents seized during dawn raids often determine the course, and sometimes the outcome, of competition law investigations. In that context, legal professional privilege ("LPP") is not merely a procedural safeguard, but one of the few meaningful limits on the extensive investigative powers of competition authorities. While both Turkish and European Union ("EU") competition law recognize LPP in principle, the actual scope of that protection remains far from settled in Türkiye, particularly when it comes to the timing and purpose of privileged communications.

This article examines the LPP contours in Turkish competition law through the decisional practice of the Turkish Competition Board ("TCB"), and the case law of the administrative courts, the Council of State and the Turkish Constitutional Court ("Constitutional Court") and contrasts this framework with EU practice. It argues that, although Turkish law broadly aligns with EU standards in excluding in-house counsel from the scope of privilege, it adopts a markedly restrictive temporal approach. In practice, this "timing" criterion excludes a significant portion of proactive compliance work and forward-looking legal advice from protection, thereby creating tangible risks for undertakings operating in Türkiye.

I. The Practice in Türkiye

The Turkish LPP regime shares its conceptual foundations with EU law, but its practical contours have taken a distinctly formalist shape, most visibly in the treatment of timing. Through a series of decisions later endorsed by the higher administrative courts, the TCB has progressively narrowed the right of defence to cover only communications generated after the commencement of an investigation or preliminary investigation. The line of cases culminating in Enerjisa decisions crystallised this approach; yet it remains in tension with the Constitutional Court's privacy-centred reading of attorney–client confidentiality. The practical consequence is that undertakings in Türkiye cannot safely assume that compliance audits, internal risk assessments, or requests for forward-looking legal advice will be shielded from inspection, even where external counsel is involved throughout.

1. The Foundational Requirements

The LPP analysis in Turkish competition law revolves around two cumulative conditions: (i) the communication must involve an independent lawyer, and (ii) it must be directly connected to the exercise of the right of defence. These requirements were first articulated in the TCB's Sanofi¹ decision and subsequently developed in CNR² decision. Under this framework, privilege extends only to (i) correspondence with external lawyers who bear no employment relationship with the undertaking, and (ii) documents the direct purpose of which is to serve the defence, as distinct from communications designed to facilitate or conceal an infringement³.

a. Independent Lawyer

The independence requirement is applied with strictness. The Huawei⁴ decision illustrates the TCB's strict stance on this matter. Indeed, at the relevant decision, the TCB found that copying an external lawyer into an email chain did not, by itself, bring the correspondence within the scope of LPP. Where the substantive exchange remained one between in-house counsel and company personnel, the peripheral involvement of outside lawyers was insufficient to attract protection. The upshot is unambiguous: in-house counsels are categorically excluded from the Turkish LPP framework.

b. The Timing Question

Amongst the LLP requirements, while the condition that a communication must involve an independent lawyer is relatively settled; the second condition, i.e. whether a communication serves the purpose of exercising the right of defence, has generated considerably more interpretative difficulty, and in practice has come to hinge almost entirely on timing. Indeed, the TCB's consistent position is that communications unconnected to the right of defence, or those aimed at facilitating or concealing a violation, fall outside the scope of LPP⁵. The complication arises in how that connection is assessed: over time, the TCB's analysis has effectively reduced this inquiry to a temporal one.

The timing of the legal advice obtained has emerged as the central point of discussion in the application of this condition. The turning point in this respect came with the Enerjisa⁶ decision. Indeed, in its Enerjisadecision, the TCB refused to grant LPP protection to the "Competition Compliance Report" prepared by independent lawyers on the grounds that it was prepared before the start date of the investigation concerned.

The Ankara 15^th Administrative Court took a different view on appeal, reasoning that the report's preventive purpose and its preparation by independent lawyers were sufficient to attract privilege, notwithstanding its pre-investigation timing⁷. However, that judgment was overturned by the Ankara Regional Administrative Court, which articulated a strict temporal rule: only documents prepared in connection with an existing investigation or related proceedings could properly be said to serve the purpose of exercising the right of defence:

"...since at the time the report was prepared there was no investigation initiated by the defendant administration against the plaintiff company for violation of the principles set forth in competition legislation, or a lawsuit seeking the annulment of an administrative action established as a result of such an investigation, it is not possible to state that the report was prepared for direct use within the scope of the right of defence..." ⁸

The Council of State upheld this reasoning, and the rule has since become settled in Turkish competition law practice⁹. As a result, the understanding has become entrenched in Turkish competition law practice that, in the absence of an investigation or preliminary investigation, LPP protection does not arise.

Following this judicial endorsement, the TCB has applied the timing criterion consistently and without exception, treating documents created before the launch of an investigation as outside the scope of LPP regardless of their content. In a series of decisions¹⁰, the documents were excluded from protection on the ground that they pre-dated the start of the investigation process, with explicit references to the Enerjisa line of cases. The TCB's recent Tatko¹¹ decision reaffirms this, holding that pre-investigation communications cannot be regarded as sufficiently linked to the right of defence. It should be further noted that a procedural dimension also features in the case law: in CNR, Dow, and Oriflame decisions¹², the TCB drew attention to the failure of undertakings to raise LPP objections formally during on-site inspections. While a failure to object does not foreclose subsequent review, it carries practical consequences for how disputed documents are handled.

Notwithstanding this settled practice, the strict timing criterion raises questions of compatibility with the Constitutional Court's jurisprudence. Indeed, at a decision annulling the obligation imposed on lawyers to report suspicious transactions under anti-money laundering legislation, the Constitutional Court held that attorney–client communications are entitled to "privileged and enhanced protection" as an aspect of the right to respect for private life. Notably, the Constitutional Court framed this protection as applying "irrespective of the ultimate purpose of the exchange"; a formulation that appears to leave no room for privilege to be denied solely on the basis of when a document was created. Nevertheless, the current practice, continues to treat the date of the investigation as the operative criterion, leaving the broader implications of the Constitutional Court's reasoning yet to be tested in the competition law context.

II. The Practice in the European Union

The architecture of LPP in EU competition law rests primarily on two landmark judgments of the Court of Justice of the European Union ("CJEU"); AM&S¹³ and Akzo Nobel¹⁴. Turkish and EU law converge on the exclusion of in-house counsel¹⁵. The divergence, however, is significant when it comes to the temporal dimension; specifically, the question of what it means for a communication to serve the purpose of exercising the right of defence.

By contrast with the TCB's rule confining the purpose of exercising the rights of defence to the post-investigation or post-preliminary-investigation phase, EU case law adopts a broader interpretation of this condition. Indeed, in the AM&S judgement; the CJEU recognised that privilege may extend to communications exchanged before the initiation of proceedings, provided they bear a material connection to the subject-matter of a potential investigation. The practical reach of this principle is considerable: legal advice obtained years in advance of any formal inquiry, precisely the kind of proactive compliance work that receives no protection in Türkiye, may fall within the scope of LPP under EU law, so long as the subject-matter link is established.

Furthermore, in Orde van Vlaamse Balies¹⁶ decision, the CJEU went further, confirming that LPP is not merely an adjunct to the right of defence but forms part of the fundamental right to respect for private life. On this basis, the protection extends to all legal advice exchanged between an independent lawyer and its client, regardless of any connection to ongoing proceedings; an approach that resonates with the Constitutional Court's privacy-centred reasoning, and stands in clear contrast to the TCB's post-investigation threshold.

The procedural framework in the EU reflects this more protective orientation. When LPP is claimed over a disputed document, that document is placed under a "sealed envelope" and reviewed by an independent Hearing Officer, who operates separately from the investigation team, before any determination is made. By contrast, privilege claims are assessed by the case-handlers themselves in Türkiye, an arrangement that raises obvious questions about the effective protection of confidential communications.

III. Conclusion

In conclusion, from a comparative perspective, legal professional privilege in Turkish and EU competition law is marked by a structural asymmetry: they share a common standard on the exclusion of in-house counsel but diverge materially on the temporal dimension of privilege. The strict post-investigation threshold that has hardened through the Enerjisa line of cases leaves pre-investigation compliance work and forward-looking legal advice effectively exposed, a result that sits uneasily both with EU practice and with the Constitutional Court's privacy-oriented jurisprudence.

The constitutional question on the other hand, remains open. The Constitutional Court's formulation; "privileged and enhanced protection", applicable "regardless of the ultimate purpose" of the communication, is comparably difficult to reconcile with a framework that conditions privilege on the date of an investigation. Whether this tension will be addressed through the competition law context, or will persist as a structural divergence, is yet to be resolved. As a result, for undertakings operating in Türkiye, the practical implications are concrete:

• Status of Counsel: LPP protection is confined to communications with independent external lawyers. Sensitive compliance work should be structured accordingly; involvement of in-house counsel, even in copy, is unlikely to attract privilege.

• Timing: Under current practice, documents predating the launch of an investigation or preliminary investigation are not regarded as directly related to the exercise of the right of defence. Pre-investigation compliance work should be conducted on the assumption that it will not be protected.
• Procedural Prudence: During dawn raids, any privilege claim must be explicitly recorded in the on-site inspection minutes. A failure to do so may have procedural consequences for subsequent attempts to invoke the sealed envelope mechanism.

Ultimately, the trajectory of the Constitutional Court's jurisprudence; with its emphasis on strong, purpose-independent protection for attorney–client communications, together with the broader, subject-matter-oriented approach adopted in the EU, points toward a framework in which privilege does not turn solely on the timing of a document. Whether Turkish competition law moves in that direction remains to be seen. In the meantime, the tension between these converging and competing currents will continue to shape both the conduct of dawn raids and the design of compli

Footnotes

1. The TCB's decision dated 20.04.2009 with number 09-16/374-88.

2. The TCB's decision dated 13.10.2009 with number 09-46/1154-290.

3. These principles were explicitly set out in the Guidelines on the Examination of Digital Data during On-Site Inspections.

4. The TCB's decision dated 14.11.2019 with number 19-40/670-288.

5. The TCB's decisions dated 20.12.2024 with number 24-54/1209-516; dated 17.08.2023 with number 23-39/735-252; dated 30.03.2023 with number 23-16/274-94; dated 29.04.2021 with number 21-24/287-130; dated 02.07.2020 with number 20-32/405-186; dated 17.01.2019 with number 19-04/36-14; dated 06.12.2016 with number 16-42/686-314.

6. The TCB's decision dated 06.12.2016 with number 16-42/686-314.

7. The Ankara 15th Administrative Court's decision dated 16.11.2017 with number E:2017/412, K:2017/3045.

8. The Ankara Regional Administrative Court, 8th Administrative Chamber's decision dated 10.10.2018 with number E:2018/658, K:2018/1236.

9. The Council of State 13th Chamber's decision dated 05.07.2022 with number E:2019/865, K:2022/3005.

10. The TCB's decisions dated 17.01.2019 with number 19-04/36-14, dated 30.03.2023 with number 23-16/274-94; dated 17.08.2023 with number 23-39/735-252.

11. The TCB's decision dated 20.12.2024 with number 24-54/1209-516.

12. As seen in the Dow decision, where the TCB reviewed the documents and eventually returned those that met the LPP criteria, despite the absence of an objection in the minutes.

For instance, in the CNR decision, the TCB explicitly stated that the "sealed envelope" procedure is contingent upon an objection during the on-site inspection. Although the lack of an initial objection did not prevent the TCB from subsequently evaluating the LPP claim, the TCB emphasized that the seizure was procedurally valid precisely because the undertaking failed to record an objection during the on-site inspection. Similarly, in the Dow decision, the TCB reviewed the documents and eventually returned those that met the LPP criteria, despite the absence of a recorded objection.

13. AM&S Europe v Commission, C-155/79.

14. Akzo Nobel Chemicals and Akcros Chemicals v Commission, C-550/07.

15. European Commission notes that in its Competition Policy Brief No 1/2025 only five Member States (Belgium, Ireland, Hungary, the Netherlands, and Portugal) recognize in-house LPP and concludes that the employment relationship inherently precludes the "full independence" required for privilege, thereby rejecting calls to extend LPP protection to in-house counsel.

16. Orde van Vlaamse Balies and Others, C-694/20.