On-Site Inspections in Turkish Competition Law

Article 15 of Law No. 4054 on the Protection of Competition (Law No. 4054) empowers the case handlers to (i) examine the books and all kinds of data and documents of undertakings and trade associations kept on physical or electronic media and in information systems and take copies if deemed necessary; (ii) request written or verbal statements on specific topics; and (iii) conduct on-site inspections with respect to any of the undertakings’ assets. The Turkish Competition Authority (Authority) may also collect information through on-site inspections conducted at the premises of the investigated undertaking (or a third-party undertaking that is not directly subject to investigation) without prior notice. The on-site inspection can be carried out during the preliminary investigation or investigation stage.

Before conducting a dawn raid, case handlers must be in possession of a deed of authorisation issued by the Board. The deed of authorisation must explicitly specify the subject matter and purpose of the investigation. However, this document would not necessarily include detailed information on the scope of the investigation or the allegations subject to investigation. The scope of the case handlers’ investigative power during the raid is limited to their authorisation. While the case handlers must not exercise their investigative powers for matters that would exceed the scope specified in the deed of authorisation, the Board may subsequently open a separate inquiry based on evidence obtained during a dawn raid. While the in-house counsels and external lawyers of the investigated undertakings are allowed to attend the on-site inspection, case handlers are not required to wait for the lawyers to start their inspection. The lawyers may interfere during the investigation if they suspect a potential violation of the investigated undertaking’s rights during the on-site inspection, such as the collection of documents protected by attorney-client privilege, the request for documents and written or verbal information exceeding the scope of the inspection. Upon completion of the inspection, the case handlers draw an on-site inspection affidavit to be co-signed by the case handlers and representatives of the inspected undertaking. The affidavit refers to the date and place of the on-site inspection, the scope of the documents collected by the case handlers together with hash values of the digital data where applicable, the verbal questions, as well as the responses conveyed during the on-site inspection.

The recent decision of the Constitutional Court of the Republic of Turkey (Constitutional Court), which was rendered on March 23, 2023 and the reasoning of which was published on June 20, 2023, rules that the Authority is obliged to obtain a court decision (i.e., a warrant) allowing the Authority officials to conduct a dawn raid. The Constitutional Court found that although the Authority’s practice has been in compliant with Law No. 4054 in its dawn raid practices, the provisions of Article 15 of Law No. 4054 regulating the dawn raids is unconstitutional as it does not require the Authority to obtain a court decision before conducting dawn raids in contravention of Article 21 of the Turkish Constitution protecting the immunity of domicile. Since the Constitutional Court found that the Authority’s practice has been in full compliance with Law No. 4054 but certain provisions of Law No. 4054 regulating the dawn raid are unconstitutional, the said provisions of Law No. 4054 is likely to be amended in the near future to comply with the decision. In the meanwhile, however, it is considered that the dawn raid practice of the Authority should not be significantly affected in a way that would lessen the frequency of the dawn raids of the Authority. Indeed, with a view to comply with the decision, the Authority would now be expected to apply to the Criminal Court of Peace (first instance criminal courts) to obtain a warrant allowing the Authority’s case handlers to conduct the necessary dawn raids. This application is already a process that is foreseen by the Law No. 4054 and applied to by the Authority from time to time.

For more information on dawn raids in Turkish competition law, please feel free to reach out to ELIG Gurkaynak at +90 212 327 1724 or through gonenc.gurkaynak@elig.com.