NEWSLETTER-2017

76 NEWSLETTER 2017 Enerjisa Decision As per the pre-inspection dated 16.11.2016 and the Memorandum dated 30.11.2016 regarding the claim that some of the documents ob- tained during the on-site inspection on 22.11.2016 are within the scope of attorney-client correspondence confidentiality has been discussed and decided upon, again on 06.12.2016 with the decision numbered 16-42/686-314 (“Enerjisa Decision”) 2 . It was reinstated by the Board that in accordance with the afore- mentioned principle of legal professional privilege, any correspon- dence regarding the exercise of the defense right of the client, and which takes place between attorney and client, between which there is no employment relationship, was deemed to be within the scope of the professional relationship, and benefits from such protection. The Board explained that this protection covers the correspondence with the independent attorney for the exercise of the right of defense and the documents prepared to obtain legal consultancy from the indepen- dent attorney. It is underlined with the Enerjisa Decision that unlike the conclu- sion of the Dow Decision, any correspondence that aided in any viola- tion, or concealing any continuing or future violation, and which was not related to the exercise of the defense right, cannot benefit from the legal professional privilege even if related to the pre-inspection, investigation or examination. With that regard, it has been determined that any legal opinion of an attorney provided to an enterprise as to whether a certain agreement is in breach ofAct No. 4054, benefits from legal professional privilege. On the other hand, the Board expressed that any legal opinion provided by an attorney to an enterprise as to how Act No. 4054 could be breached, will not be within the scope, and under the protection, of legal professional privilege. Therefore, pursuant to the Enerjisa decision, the abovementioned legal burden of proof stated under the Dow Decision was reversed with respect to any correspondence regarding the methods of violating Act No. 4054. The Board has unanimously concluded in the Enerjisa decision that the 2 http://www.rekabet.gov.tr/File/?path=ROOT%2F1%2FDocuments%2FGere k%C3%A7eli+Kurul+Karar%C4%B1%2F16-42-686-314.pdf (Access date: 21.08.2017).