NEWSLETTER-2017

75 COMPETITION LAW Dow Decision and Enerjisa Decision The Board’s decision dated 02.12.2015 and numbered 15-42/690- 259 (“Dow Decision”) 1 underlined that some of the documents taken during on-the-spot inspections are considered within the scope of the confidentiality of written communications between attorney and client. The Dow Decision shed light on the legal professional privilege and confidentiality for approximately one year. However, recently, within the framework of another inspection, this issue has been brought up again with a different perspective. Dow Decision As stated in the Board’s Dow Decision, “ The principle of confi- dentiality (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’ concerns -who have re- ceived consultancy- 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.” In its Dow Decision, the Board set forth the following conditions to be fulfilled: (i) the written communications must be made between client and independent attorney (who is not bound to the client by a relationship of employment) and, (ii) written communications must be made for the purposes, and in the interests, of the client’s rights of defence. However, until the next decision, explained below, was published, the burden of proof was deemed to be on the Board to prove that these conditions were not fulfilled, and that certain documents were not afforded the protection of legal professional privilege. 1 Please see. http://www.rekabet.gov.tr/File/?path=ROOT%2f1%2fDocuments%2fGere k%C3%A7eli+Kurul+Karar%C4%B1%2f15-42-690-259.pdf (Access date: 21.08.2017).