The Competition Board has certain inspection powers to facilitate, protect and encourage competition. One of those powers is the authority to carry out on-site inspections. Article 15, “On-Site Inspection”, in Act no. 4054 on the Protection of Competition (“Act”) provides relevant information.
Accordingly, the Board may inspect enterprises and enterprise associations if it considers it necessary to perform its duties. It can request verbal or written explanations and examine the properties of enterprises at their workplaces. Amendment no. 7246 of 16.06.2020 made significant changes in this article, broadening the scope of on-site inspections and emphasizing the urgency of the subject. Thus, the amendment facilitated inspecting any data and documents stored by enterprises in electronic media and IT systems during an on-site inspection, and/or reviewing such data and documents with their digital or hard copies.
In an unannounced on-site inspection, experts are entitled to review all documents, obtain their copies (not the original files), request written and verbal explanations, and inspect any property. Enterprises and enterprise associations are obligated to help the experts, give any written or verbal explanation requested from them, provide the relevant books, explain their properties and sign the minutes containing the findings of the on-site inspection. Articles 16 and 17 in the Act impose penalties if: an on-site inspection is obstructed or complicated; incomplete, false or misleading details or documents are provided; or details or documents are not provided within the specified time or at all. The Act also stipulates that if an inspection is obstructed or is likely to be obstructed, an inspection will be conducted upon approval by a magistrate’s court.
In 2016, the 13th Department of the State Council rendered a judgment regarding the obstruction of an inspection. In the incident, the reporters authorized to conduct on-site inspection at the plaintiff company could only begin their on-site inspection 40 minutes after their arrival. This incident was considered as an attempt for the obstruction of an on-site inspection by means of a delay, given that this timeframe would suffice to remove potential inspection materials from the building. This judgment was taken as reference for the judgment of the 8th Administrative Case Department of Ankara Regional Administrative Court, dated 2022, where it was decided that a delay of 6 hours and 45 minutes was unquestionably an attempt of obstruction.[1]
In view of the Board’s judgments on digital data, concerning the obstruction or complication of on-site inspections, we understand that this matter has gained significance recently with the publication of the Guide on Review of Digital Data During On-Site Inspections (“Guide”)[2], and that the Board now imposes
penalties for the erasure of digital data that is specifically identified as material to be inspected during an on-site inspection.[3]
During their on-site inspections, experts must have a warrant on hand that outlines the subject and purpose of the inspection, as well as the administrative penalties that will be levied if false information is discovered. The Guide also mentions the obligation for active cooperation, in addition to non-complication and non-obstruction duties, listing enterprise liabilities that include informing about the software and hardware relevant to the IT used, providing system admin authorizations, enabling remote access to employee e-mail accounts, and restricting user access to corporate accounts.
On-site inspection is inextricably linked to privacy, immunity of residence, and protection of personal data, which are protected under the Constitution. While the Constitutional Court of the Republic of Türkiye and the European Court of Human Rights have rulings that include workplaces in the scope of residential privacy, legislators and implementors do not fully agree on these matters. Therefore, a clear consensus is also crucial for constitutional rights. To eliminate any concerns over privacy, the Guide states, “Portable communication devices designated for personal use will not be subject to inspection.” Thus, personal mobile phones cannot be inspected during an on-site inspection in order to safeguard people’s privacy and personal lives.[4]
When an on-site inspection power is exercised, personal data is quite likely to be found among the information and documents reviewed or copied. In such a setting, we witness an incident of “personal data processing”, as defined in the Personal Data Protection Law (“Law”) of the Authority. However, clause 28/2 (c) of the Law introduces an exception. Thus, in accordance with the purpose and key principles of the Law, Article 10 (which stipulates the data controller’s obligation to inform), article 11 (which regulates the data subject’s rights, except for the right to claim for damages), and article 16 (which sets forth the obligation to register in the Data Controllers’ Registry) do not apply if personal data processing is necessary for performance of supervision or regulatory duties by public institutions and organizations authorized by the law. Otherwise, compliance with the Law is obligatory. Professionals who fail to follow these rules will be judged to have misused their rights. The businesses affected by this type of misuse can claim for damages.[5]
In conclusion, if an enterprise fears penalties arising from an on-site inspection authorized by the Board, it must observe any on-site inspection rules and cooperate with the relevant officers without obstructing or complicating the process.
[1] https://www.rekabet.gov.tr/Safahat?safahatId=cae3ea55-5b0f-471c-8456-f9b68ca280bf
[2] https://www.rekabet.gov.tr/Dosya/kilavuzlar/yerinde-inceleme-kilavuz1-20201009091644514-pdf
[3] See
the judgment on Eti Gıda Sanayi A.Ş. at https://www.rekabet.gov.tr/Karar?kararId=5a6a8baf-31f0-44cf-96c7-278940729ad9
the judgment on İstanbul Gübre Sanayi A.Ş. at https://www.rekabet.gov.tr/Karar?kararId=28f6b5a9-d047-4e08-acdd-b28d6d19a616
[4] https://www.rekabet.gov.tr/Dosya/kilavuzlar/yerinde-inceleme-kilavuz1-20201009091644514-pdf, article 4
[5] http://tbbdergisi.barobirlik.org.tr/m2010-90-639 pp. 121
