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Analysis & trends
Legal Professional Privilege in Competition Investigations: EU Policy Brief vs Turkish Practice
The European Commission (the “Commission“) has recently revisited the scope of legal professional privilege (“LPP”) in EU competition law, through its Competition Policy Brief[1] addressing communications involving in-house counsel. At the same time, the Turkish Competition Board (the “Board”) and Turkish courts have further clarified the contours of LPP in competition investigations, often adopting a notably restrictive approach.
Against this background, this client alert provides a comparative overview of the EU and Turkish frameworks, highlighting key practical implications for undertakings subject to competition law scrutiny.
1. EU FRAMEWORK: DEFENCE-ORIENTED AND LIMITED TO INDEPENDENT COUNSEL
Under the established case law of the Court of Justice of the European Union, most notably AM&S Europe Ltd v Commission[2] and Akzo Nobel Chemicals Ltd v Commission,[3] LPP is subject to two cumulative conditions:
- communication must take place between a client and an independent external lawyer qualified within the European Economic Area (the “EEA“); and
- it must be directly related to the exercise of the client’s rights of defence in the context of a competition investigation.
The recent Competition Policy Brief reaffirms this narrow interpretation and explicitly rejects extending LPP to in-house counsel. The Commission maintains that the employment relationship of in-house lawyers prevents the level of independence required for privilege protection.
In doing so, the Commission also raises policy concerns, noting that any extension of LPP could:
- risk shielding relevant evidence from scrutiny,
- encourage artificial “privilege claims” over ordinary business communications, and
- complicate on-site inspections (dawn raids).
Accordingly, the EU position remains clear and well-established: LPP is strictly limited and does not cover in-house counsel communications in competition proceedings.
This position applies in the context of EU competition law investigations conducted by the Commission, while national privilege rules may remain relevant where an investigation is conducted by a national competition authority under its own procedures.
2. TURKISH FRAMEWORK: CONVERGING PRINCIPLES, STRICTER APPLICATION
Turkish competition law contains no specific LPP rule in Law No 4054 on the Protection of Competition (“Law No 4054“). Instead, the Board derives its approach from general legal principles, including Attorneyship Law No 1136 and Criminal Procedure Code No 5271 and has developed its own practice.
In line with EU jurisprudence, Turkish practice applies two cumulative criteria:
- the communication must be with an independent lawyer (i.e. no employee–employer relationship); and
- it must be directly linked to the exercise of the client’s rights of defence in a specific competition investigation or alleged infringement.
While these criteria appear aligned with the EU framework, the Board’s enforcement practice demonstrates a more formalistic and restrictive interpretation, particularly with respect to the timing and purpose of the communication.
A. Board Practice
a. Dow
In the Dow Decision,[4] the Board defined legal professional privilege as a safeguard aimed at ensuring the effective exercise of defence rights by preventing the compulsory disclosure of communications and information exchanged between undertakings and their legal counsel in the course of obtaining legal advice. Within this framework, the Board set out two cumulative conditions for privilege to apply: (i) the communication must take place between the client and an independent external lawyer (i.e. in the absence of an employment relationship), and (ii) it must be made for the benefit of the client and in connection with the exercise of defence rights. The Board further clarified that the burden of substantiating a privilege claim lies with the undertaking, which must demonstrate – by reference to factors such as authorship, purpose, and the parties’ respective roles – that the document falls within the protected independent external lawyer-client relationship. However, this approach has subsequently evolved towards a more restrictive interpretation, particularly with the Enerjisa Decision.
b. Enerjisa
In the Enerjisa Decision,[5] the Board clarified that legal professional privilege is limited to communications between an undertaking and an independent external lawyer that are directly related to the exercise of defence rights. Within this framework, legal assessments provided by external counsel as to whether a particular conduct may infringe Law No 4054 are, in principle, considered privileged. By contrast, communications addressing how an infringement could be carried out, or otherwise lacking a sufficient connection to the exercise of defence rights, do not benefit from such protection, even where they relate to the subject matter of the investigation. Accordingly, the Board concluded that the relevant correspondence did not benefit from legal professional privilege, as it was not directly related to the exercise of defence rights.
c. Tatko Lastik
In the Tatko Lastik Decision,[6] the Board reaffirmed that legal professional privilege applies only to communications with independent external counsel that are directly related to the exercise of defence rights. In the case at hand, the Board found that the documents subject to the privilege claim predated the initiation of the investigation and therefore lacked a direct connection to the exercise of defence rights. Accordingly, the Board concluded that the documents did not benefit from legal professional privilege and rejected the request for their return.
B. In‑House Counsel: No Protection Under Turkish Competition Practice
The Board’s practice makes it clear that communications involving in-house counsel do not benefit from LPP in competition investigations.
- the concept of an independent lawyer is interpreted as excluding employed lawyers; and
- internal correspondence involving in-house counsel may be reviewed and used as evidence, unless it is directly linked to external counsel and satisfies the defence-related criteria.
In this respect, Turkish practice is fully aligned with the EU framework and the position reaffirmed in the Commission’s Policy Brief.
3. PRACTICAL IMPLICATIONS FOR UNDERTAKINGS
In light of the foregoing, undertakings operating in jurisdictions subject to EU and Turkish competition law enforcement should exercise particular caution in structuring their legal communications. As a threshold matter, it must be recognised that communications with in-house counsel do not benefit from legal professional privilege in either jurisdiction; accordingly, reliance on such communications for the purposes of obtaining protected legal advice should be avoided. Sensitive legal assessments, particularly those touching upon potential competition law risks, should instead be channelled through independent external counsel so as to fall within the scope of privilege protection. This is especially critical in Türkiye, where the Board’s recent decisional practice indicates that only communications bearing a direct and demonstrable link to an ongoing or imminent investigation are likely to qualify for protection — general compliance reviews and preventive risk assessments, by contrast, remain outside the scope of LPP. Beyond the choice of counsel, undertakings are also well advised to implement robust document management protocols: defence-related correspondence should be clearly segregated from routine business communications, the circulation of legally sensitive material should be limited to those with a genuine need to know, and the practice of copying legal counsel on ordinary commercial correspondence for the sole purpose of creating a veneer of privilege should be strictly avoided.
CONCLUSION
In conclusion, both EU and Turkish competition law frameworks adopt a restrictive, defence-oriented approach to legal professional privilege, excluding in-house counsel communications from protection.
However, the Board’s recent decisional practice suggests an even narrower application, particularly with respect to the timing and purpose of the communication. As a result, undertakings should adopt a cautious, structured and well-documented approach to legal communications, especially in anticipation of competition law investigations.
