TURKEY Law and Practice Contributed by: Gökşin Kekevi, Yıldız Akınsal and Öykü İncekara, Özay Law Firm
On the other hand, legal professional privilege is interpreted and applied quite narrowly by the TCA. According to TCA decisions, legal professional privi - lege protection is granted only for correspondence with an independent lawyer (external counsel) as long as it is directly related to an ongoing investigation for the exercise of defence rights. In contrast, communi - cations with in-house counsels or general legal advice received from external counsel before an investigation are not protected, and can be used by the TCA to identify violations. Therefore, such communications that appear in TCA decisions can also be submitted as evidence by plaintiffs in private antitrust damages claims. 6.3 Leniency and Settlement Agreements Turkish competition legislation does not provide direct or absolute protection for documents submitted dur - ing leniency and settlement proceedings. However, pursuant to the TCA’s Regulation on Active Cooperation for Detecting Cartels (“Leniency Regula - tion”), critical information regarding a cartel may also be submitted orally to the TCA, including details such as the products affected by the cartel, the geographic market, the duration of the infringement, and the par - ties involved. These statements are transcribed by the TCA’s experts and kept as “internal correspond - ence”. Communiqué No 2010/3 on the Regulation of the Right of Access to the File and Protection of Trade Secrets explicitly refers to the Leniency Regulation, stipulating that information and documents obtained through this method shall be classified as internal cor - respondence. A similar provision is set forth in the Settlement Reg - ulation of the TCA, whereby an undertaking settling with the TCA may submit its statements acknowledg - ing the existence and scope of the infringement orally. In such cases, the prepared settlement text is likewise stored as “internal correspondence”. This practice of the TCA may create a practical diffi - culty, particularly for plaintiffs who file compensation lawsuits. Since documents classified as internal cor - respondence are excluded from the scope of the right to access the file, plaintiffs’ access to this information
and the evidence necessary to establish the infringe - ment becomes effectively restricted.
7. Witness and Expert Opinions 7.1 Witness Procedure
The procedure for examining witnesses is governed by the general rules of civil procedure, under which the parties may rely on witness evidence within the legally prescribed time limits. Accordingly, the court must be provided with the identity and contact details of the proposed witnesses, as well as the specific facts on which they are to testify. At the hearing, witnesses are examined by the judge, and the parties’ legal counsel are also entitled to put questions to them. 7.2 Expert Witness Role and Procedure Under Article 266 of the Code of Civil Procedure, the court may decide to obtain an expert opinion in cases requiring specialised or technical knowledge. The par - ties have the right to object to the expert report, and the court may order the preparation of a supplemen - tary report. In private competition law litigation, expert evidence is used primarily for the quantification of damages. Although the judge is not legally bound by the conclu - sions of the expert report, in practice, courts largely rely on the findings set out in the report. 8. Damages 8.1 Damages: Assessment, Passing On and Interest The scope and method of calculating damages are governed by Article 58 of the Competition Act. In dam - ages actions arising from competition law infringe - ments, injured parties may claim compensation for both their actual damages and loss of profits. In deter - mining the amount of lost profits, the profits that the injured undertaking could reasonably have expected to earn are assessed, taking into account its financial statements from previous years, among other things. The general rule under Turkish law is that only the actu - al damages suffered by the injured party are recover -
205 A NTITRUST LI T IGATI O N 2026
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