Newsletter-21

144 NEWSLETTER 2016 “ 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 communica- tions 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 protec- tion; 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 dis- cussed 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, there- fore, 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 cli- ent are subject to two conditions. With regard to the first condition, written communications between lawyer and client must ensure that 2 Please see. http://www.rekabet.gov.tr/File/?path=ROOT%2F1%2FDocuments %2FGerek%C3%A7eli+Kurul+Karar%C4%B1%2F14-29-596-262.pdf (Access date: 21.04.2016). 3 Case 155/79 AM&S Europe Limited v. Commission of the European Communi- ties, 18.5.1982, [1982] ECR 1575.