The TCA’s Power to Conduct On-Sıte Inspectıons: The Inspectıon of Dıgıtal Data

Burak Buğrahan Sezer

With Contributions of Mustafa Ayna (ACTECON) and Arda Deniz Diler (ACTECON)

Introduction

Competition authorities around the world are provided with a set of certain powers to determine the material facts of a case and assess possible market failures and competition law risks; whether for an M&A notification, an investigation regarding undertakings’ actions or a sector research. Likewise, Turkish Competition Authority (“TCA”) is also equipped with such investigating powers. Besides being entitled to direct questions to undertakings within its jurisdiction, its most known and yet controversial power is to conduct on-site inspections.

Such inspections include the examination of every document and asset of an undertaking; and as the utilization of digital platforms within the context of work is on the rise, the scope of the inspections is starting to extend towards digital data. This involves the digital data stored in the computers, cloud systems, and mobile devices of the undertakings used by employees, and most importantly, communications conducted by the employees outside of professional e-mails and via instant messaging apps.

However, with such developments, the imposition of the power to conduct on-site inspections enters into a grey area in which the protection of fundamental rights and liberties are encroached upon by the TCA. Naturally, controversies have arisen regarding whether an administrative authority can interfere with fundamental rights and liberties through an administrative decision.

In this article, we will examine the TCA’s power to conduct on-site inspections and the discussions revolving around it, with a focus on the inspection of digital data.

In this context, we will first lay the legislative foundations and the general scope of on-site inspections. Then we will assess the TCA’s position as opposed to the protection of fundamental human rights, and the legal security and limitations brought by them especially upon the inspection of digital data. Following, we will examine the TCA’s implementation of its power to conduct on-site inspections on undertakings’ digital data.

The TCA’s On-site Inspections

The Constitution of the Republic of Turkey (“Constitution”) assigns the duty to protect competition and the free market to the State in Article 167:

The State shall take measures to ensure and promote the sound and orderly functioning of the markets for money, credit, capital, goods, and services; and shall prevent the formation of monopolies and cartels in the markets, emerged in practice or by agreement.

As can be seen, it’s a constitutional duty for the State to protect competition and maintain the free market. With this article, the Constitution mainly aims to protect the market from anti-competitive behaviour in order to protect social/consumer welfare. Accordingly, the State carries out this duty via Law no. 4054 on the Protection of Competition (“Competition Law”) and the TCA.

Similarly, the Treaty on the Functioning of the European Union (“TFEU”), which is considered to be one of the two main constitutional backbones of the European Union (“EU”), adopted Articles 101-109 in order to ensure free and fair competition in the EU. The relevant regulations are aimed to provide consumers with a wide range of products at fair or reasonable prices and maintain the social benefits of fair and free competition while preventing the market from evolving away from the competitive state to keep the deadweight loss in society to a minimum.

In this context, while carrying out its duty as appointed by the Constitution, the TCA utilizes the powers invested in it. As per Article 15 of the Competition Law, the TCA is entitled to conduct on-site inspections at undertakings and the associations of undertakings in cases it deems necessary:

In carrying out the duties assigned to it by this Act, the Board may perform examinations at undertakings and associations of undertakings in cases it deems necessary. To this end, it is entitled to:

a) Examine the books, all types of data and documents of undertakings and associations of undertakings kept on physical or electronic media and in information systems, and take copies and physical samples thereof,

b) Request written or oral statement on particular issues,

c) Perform on-site examination of any assets of undertakings.

Examination is performed by experts employed at the disposal of the Board. While going for an examination, experts carry with them an authorization certificate showing the subject-matter and purpose of the examination, and that an administrative fine shall be imposed should incorrect information be provided.

Those concerned are obliged to provide the copies of information, documents, books and other instruments requested. In case an on-site inspection is hindered or likely to be hindered, the on-site inspection is performed with the decision of a criminal magistrate.

The mentioned provision bears two main aspects:

The TCA has the authority to examine any asset and data kept in any form, as long as it belongs to the concerned undertaking, and
The only legal ground for such broad examination, including every asset and data of an undertaking, is the authorization certificate signed by the Chairman of the Competition Board (“Board”). Therefore, it can be deduced that the TCA does not acquire a court decision while conducting on-site inspections.

Even though the TCA’s power to conduct on-site inspections is broad, it also has its limitations. Limitations are firstly brought by Article 15 of the Competition Law itself. As the provision clearly states, only the assets and data which belong to the undertaking can be examined within the scope of the inspection. Otherwise, the examination of data contained in an asset such as a notebook or mobile device that is not under the ownership of the undertaking would pose an excess of power and a violation of Article 15.

The Extension of the TCA’s Power over Digital Data

The TCA’s on-site inspection procedure has been adapted to the change in the work environment as well. To conduct an efficient on-site inspection, acquire findings, and expose anti-competitive behavior, the power to conduct on-site inspection has been amended in a way that includes digital data. In 2020, Article 15 of Competition Law was amended by the Law No. 7246 Amending the Law on the Protection of Competition.

While the original provision stated the following prior to the amendment: “Examine the books, any paperwork and documents and take their copies if needed”, the concerned subparagraph of Article 15 has been changed to say, “Examine the books, all types of data and documents of undertakings and associations of undertakings kept on physical or electronic media and in information systems, and take copies and physical samples thereof”.

As can be seen, the amendment added data kept on electronic mediums and in information systems to the scope of the on-site inspection. However, it should be emphasized that the aforementioned limitation on the inspections is directly repeated in the amendment as well and sets a clear border for the TCA not to cross. Even though the TCA is now entitled to inspect cloud systems or mobile devices, this inspection is legal as long as assets and data under examination are in the ownership of the concerned undertaking.

In addition, the TCA published Guidelines on Examination of Digital Data in On-Site Inspection (“Guideline”) 9 October 2020 with respect to the identification of the general principles of on-site inspections and utilization of their new horizon. Paragraph 4 of the Guideline is as follows:

“As a result of a quick review to determine whether portable communication devices (mobile phones, tablets, etc.) contain digital data belonging to the undertaking, it is decided whether these devices will be inspected or not. Portable communication devices that are determined to be completely specific to personal use are not subject to inspection. Portable communication devices that are found to contain data belonging to the undertaking are analyzed through forensic IT tools. Data that is considered to have an evidential value within the framework of the file is extracted and all other data that are not seen as evidence are permanently deleted in a way that cannot be recovered.”

Similar to the regulation in Article 15, the Guideline also limits the on-site inspections with assets and data under the ownership of concerned undertakings. It clearly states that communication devices such as mobile devices or personal computers that belong to the employees and the data kept in them are outside of the scope of on-site inspection. Therefore, any data collected via such personal devices cannot be deemed as evidence and should be deleted in a way that cannot be retrieved.

In today’s work environment, while the utilization of technological advances and digitalization in every aspect and step of work are on the rise, the usage of digital data and storage become more and more common every day. Alongside the efficiency brought by such development, this blurs and weakens the distinction between personal and work-related data. And despite the legislative efforts to keep up with these changes, this grey area is enlarging rapidly. With every technological advancement, technical details that need to be evaluated and the number of possible situations in which persons’ rights and liberties should be weighed against the public good increase.

In the following sections of this article, such rights and liberties will be evaluated as the limitations brought upon the TCA’s power to conduct on-site inspections by the Constitution and European Convention of Human Rights (“Convention”), especially regarding the inspection of digital data.

The Legality of the TCA’s On-site Inspections, Especially of Digital Data

As mentioned above, the competition authorities and especially the TCA carry out a constitutional duty for the public good and are equipped with certain powers to realize their duties. Apparently, as the TCA is neither a judicial authority nor an enforcement agency, an independent autonomous authority, even though it undertakes such a significant duty to protect a fundamental right for the public good, cannot be exempted from the applications of other fundamental rights and liberties that are regulated in the same legislations.

The EU approaches the competition rules in a way similar to that of Turkish legislation. In the European approach, the protection of competition is much like a constitutional duty and aims to protect and maximize consumer welfare. This is also apparent from the fact that core regulations regarding the protection of competition are included in the TFEU. Such a social approach is supported by judicial reviews as well. The Court of Justice of the European Union, (“CJEU”), in its judgment on the case of GlaxoSmithKline, pointed out that the purpose of Article 101/1 TFEU is to prevent companies from actions that would reduce the welfare of the final consumer.[1]

Therefore, it can be deduced that the Turkish and European approaches towards competition focus on the protection of social/consumer welfare, which is related directly to the protection of fundamental rights when boiled down. Accordingly, Ksenya Smyrnova states that:[2]

The Charter of Fundamental Rights, which according to the Treaty of Lisbon, is one of the fundamental documents of the EU confirms this social dimension of the right to fair competition. Article 38 of the Charter states that “the Union’s policies ensured a high level of consumer protection.” This means that one of the objectives of EU competition policy is to protect consumer rights.

Thus, competition law mainly protects society from being robbed by cartels and monopolies. As former Commissioner Kroes stated: “I do believe that we need to begin changing the general perception of the competition rules. […] It is up to us to show that when we break up cartels, it is to stop money being stolen from customers’ pockets.”

In light of this, it can be inferred that in Turkish legislation, similar to the European, the protection of competition derives from fundamental core legislations, the Constitution, and the TFEU. And the competition authorities carry out a social duty for the public good via the protection of consumer welfare. However, it would be contradictory to the nature and aim of the Constitution to harm certain fundamental rights and liberties while protecting the public good with the means of competition law. Therefore, as emphasized above, even an authority who undertakes such significant duty to protect a fundamental right for the public good cannot be exempted from the applications of other fundamental rights and liberties regulated in the same legislations. Thus, the TCA with its decisions and conduct is responsible for the fundamental rights and liberties regulated under the Constitution such as the right to a fair trial and protection of privacy.

Accordingly, the Constitutional Court also referred to the European Court of Human Rights (“ECHR”) and ruled that the guarantees provided by the Convention also are applicable for the administrative investigation phases:

In fact, other rights and guarantees in Article 38 (such as the application of the law in favour, presumption of innocence, illegally obtained evidence, time bar) are universal rules that are not limited to investigations and prosecutions in criminal law, but are also applicable to administrative fines, disciplinary fines, and misdemeanours. It is not possible to evaluate the right to remain silent and right to not be compelled to present incriminating evidence against himself or his relatives. In a case brought against England, the European Court of Human Rights, with a decision dated 19 September 2000 and numbered 29522/95, ruled that “… the use of statements, which are made to the investigators who are investigating the transfer of the company with the threat of penal sanction, during the trial” constitutes a violation of the European Convention on Human Rights. This decision shows that the right to remain silent also applies during the administrative investigation phase.”

The TCA itself conducts an administrative investigation phase during investigations, preliminary inquiries, and sector research it carries out. Therefore, it can be deduced from the Constitutional Court’s decision that the rights and guarantees provided by fundamental rights and liberties determined in constitutional legislation are applicable in the TCA’s procedures as well.

Therefore, the TCA and its procedures are liable against the fundamental rights protected under the Constitution and the Convention. In light of this, the TCA’s on-site inspections’ compliance with fundamental rights and liberties, especially with (i) the right to privacy, (ii) the immunity of domicile, and (iii) the freedom of communication is questionable. Furthermore, the inspection of digital data that came into practice with the recent developments in legislation itself bears distinct issues with respect to the protection of such rights and liberties.

The Legal Position of the TCA’s Inspections Over Digital Data

During on-site inspections, as per the Competition Law with its recent amendment, the TCA has the right to access and inspect every asset and data of an undertaking. However, this broad definition of power causes a controversial grey area between the inspection power of an administrative entity and the fundamental rights of individuals. In practice, during an on-site inspection, not all assets and data on the premises such as briefcases, notebooks or digital devices and the data they contain might belong to the undertaking. As explained above, the Competition Law clearly sets a boundary around the assets and data that can be inspected according to whether they belong to the concerned undertaking or not; however, determining which asset belongs to an undertaking can be a tricky issue. On top of that, the most controversial issue and the hardest determination is which data belongs to the concerned undertaking and which data is within the boundaries of the TCA’s power to conduct on-site inspections.

For instance, determining whether a mobile device contains data related to the concerned undertaking or is only for personal use and outside of the scope of the on-site inspection, is an issue. In order to resolve this issue, the Guideline envisages the quick-look method, whereby the experts conducting the inspection take a cursory look through the device without conducting a detailed analysis. However, this regulation does not clear the issue. Indeed, there might be communications or pictures contained in the mobile device that are personal, private and so sensitive that even a quick look might pose a violation of privacy. Another situation that further illustrates this grey area would be is the different policies undertakings apply to mobile devices. For example, there are some undertakings that have a Bring Your Own Device (“BYOD”) policy. In BYODs, undertakings do not provide their employees with mobile devices or sim cards dedicated for work and allow them to use their own personal devices. Different undertakings follow different policies and, in a situation in which such undertaking is under on-site inspection, a mobile device might belong to the concerned undertaking while the sim card contained belongs to the employee and might be for personal use only and vice versa. There can be unlimited unique situations in work-life not specifically regulated by the legislation. Such grey area poses a significant risk for to the protection of fundamental rights and liberties such as the right to privacy, immunity of domicile, and freedom of communication. These issues are not covered in the legislation and the grey area caused by them threatens fundamental rights and liberties.

At this point, we will examine, on basis of each concerned right, whether the TCA’s on-site inspections comply with the conditions determined within the legislation.

The TCA’s Liability Against Right to a Fair Trial

Within this context, first, we would like to evaluate the TCA’s responsibility to uphold the right to a fair trial as defined under Article 6 of the Convention. Then, we will examine the TCA’s liability against Article 8 of the Convention, which provides the right to privacy, immunity of domicile, and freedom of communication.

Article 6 of the Convention ensures the fundamental right to a fair trial in Article 6 as follows:

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

Examining the article, we see that the Convention foresees the conditions of the existence of the “determination of his civil rights and obligations” and “criminal charge against him” for the enforcement of the right to a fair trial. Even though the Constitutional Court’s aforementioned decision provides that the fundamental rights and liberties determined in the constitutional legislation are applicable in the TCA’s procedures as well, an evaluation of whether the TCA is liable against Article 6 of the Convention is of significance. In this context, we will evaluate whether the inquiries initiated by the TCA can be considered to be of a criminal nature.

For this evaluation, the ECHR’s Engel Decision[3] is significant in that it paved the way for the determination of what constitutes a criminal charge in the context of Article 6 of the Convention, with the criteria it envisaged. The Engel-criteria has become an essential guide for the evaluation of a criminal charge and also is explained in the Guide on Article 6 of the European Convention on Human Rights (“Guide on Article 6”). The Engel-criteria has three subjects to be assessed: (i) classification in domestic law, (ii) nature of the offence, and (iii) severity of the penalty that the person concerned risks incurring.

In light of the Guide on Article 6, the first standard of the Engel-criteria can be understood simply as if the domestic law classifies an offence as criminal, then it will be decisive. The second and third criteria are more hermeneutical and significant in the ECHR’s view. Within this scope, the offences under the TCA’s scrutiny should be measured against the Engel-criteria to determine if they are criminal in nature and therefore liable to Article of 6 the Convention.

Before examining the Engel-criteria, it should be taken into consideration that Guideline on Article 6 states that “the first criterion is of relative weight and serves only as a starting point” and if the domestic law does not define the offence as a crime, then the ECHR will look behind the national classification and examine the substantive reality of the procedure in question. The ECHR stated in the Engel Decision that the term “criminal charge” is a concept independent from the classifications of domestic law.[4] The ECHR also underlines that within the context of definition of “criminal charge,” a substantive rather than formal approach should be adopted based on merits.[5]

In this context, when we look at Turkish law, it is clear that offences in competition law are not defined as criminal. Therefore, the second and third criteria should be examined to determine whether the offences bear criminal nature.

The ECHR provides some factors for evaluating the second criterion, such as:

whether the legal rule in question is directed solely at a specific group or is of a generally binding character,
whether the proceedings are instituted by a public body with statutory powers of enforcement,
whether the legal rule has a punitive or deterrent purpose, and
whether the imposition of any penalty is dependent upon a finding of guilt.

First, competition rules are directed towards all undertakings that may have an effect on the Turkish market and aim to protect the public good as they protect social welfare. Additionally, the responsibility of protecting competition lies with the State and competition rules are envisaged by the Competition Law and enforced by an administrative body, the TCA. Also, as is stated in the preamble of Regulation on Fines to Apply in Cases of Agreements, Concerted Practices and Decisions Limiting Competition, and Abuse of Dominant Position (“Regulation on Fines”), the aim of the regulation is to provide deterrence. With this in mind, deducing from the facts that (i) the fines are determined independently from the damages occurred or the benefits earned and based on the turnover of the undertakings, and (ii) there are mechanisms implemented such as repetition and leniency, the fines also bear a punitive purpose. Therefore, the fines in Turkish competition law are both deterrent and punitive. Lastly, as known, the imposition of any fine by the TCA depends on whether it can be determined that the undertakings are in violation of the Competition Law. Thus, it can be said that the second criterion is met.

And for the third criterion, the ECHR states that the maximum potential penalty for which the relevant law provides is considered. Article 16 of the Competition Law that regulates administrative fines to be imposed is as follows:

“To those who commit behavior prohibited in Articles 4, 6 and 7 of this Act, an administrative fine shall be imposed up to ten percent of annual gross revenues of undertakings and associations of undertakings or members of such associations to be imposed a penalty, generated by the end of the financial year preceding the decision, or generated by the end of the financial year closest to the date of the decision if it would not be possible to calculate it and which would be determined by the Board.”

As can be seen, undertakings found to be in violation of the Competition Law are fined up to 10% of their annual gross revenues. Clearly, such fines can wash away all the profitability of an undertaking and can cause a significant decrease in its stock value. In this sense, the fines in competition law can be considered to be of a criminal nature. Likewise, the ECHR ruled that the penalties in Italian competition are of a criminal nature in its Menarini Decision.[6]

Indeed, the case law of the ECHR states that offences within the scope of competition law are under the field of application of Article 6 of the Convention:[7]

There are clearly “criminal charges” of differing weight. What is more, the autonomous interpretation adopted by the Convention institutions of the notion of a “criminal charge” by applying the Engel criteria have underpinned a gradual broadening of the criminal head to cases not strictly belonging to the traditional categories of the criminal law, for example, administrative penalties (Öztürk, cited above), prison disciplinary proceedings (Campbell and Fell v. the United Kingdom, 28 June 1984, Series A no. 80), customs law (Salabiaku v. France, 7 October 1988, Series A no. 141-A), competition law (Société Stenuit v. France, 27 February 1992, Series A no. 232-A), and penalties imposed by a court with jurisdiction in financial matters (Guisset v. France, no. 33933/96, ECHR 2000-IX).

In light of the above, the offences under the TCA’s scrutiny are of a criminal nature in accordance with the Engel-criteria, thus the TCA’s procedures and decisions fall into the field of application of Article 6 of the Convention.

The TCA’s Liability against the Right to Privacy and Freedom of Communication

Protection of a person’s private life and correspondence has been established under Article 8 of the Convention and Article 20 and 22 in the Constitution. As established above, the TCA and its conducts are liable to fundamental rights and liberties protected under the Constitution and the Convention. Within this scope, Article 8 of the Convention, which provides the right to privacy, immunity of domicile and freedom of communication, is as follows:

Everyone has the right to respect for his private and family life, his home, and his correspondence.

Articles 20 and 22 of the Constitution are as follows respectively:

Everyone has the right to demand respect for his/her private and family life. Privacy of private or family life shall not be violated.

Everyone has the freedom of communication. Privacy of communication is fundamental.

During an on-site inspection, the experts authorized by the TCA, examine every asset belonging to the concerned undertaking and all data stored in any type of medium. This can include mobile devices, computers, servers, and cloud storage. It is clear that the inspection of such data has the risk of interfering with a person’s core rights, firstly the right to privacy. However, as mentioned before, even though it is a very extensive power of inspection, the Competition Law itself draws a line and prevents the TCA from inspecting, obtaining, and using personal data, in Article 15. Nevertheless, such extensive power over a fundamental right comes with its own responsibility and brings the question of which data belongs to the concerned undertaking and are work-related and which data are personal, to the surface.

In this regard, the protection of the private life of a person from the exercise of power to conduct on-site inspection constitutes a controversial issue. Authorities should be able to balance (i) the protection of public good via the enforcement of competition law and (ii) the protection of the fundamental rights of individuals such as the right to privacy. The power to conduct on-site inspections must be exercised in proportion to the individual’s rights and should not give any chance to arbitrary actions. Different jurisdictions have dealt with this issue.

For instance, the Supreme Court of Ireland dealt with a similar situation in its CRH v. CPCC Decision.[8] In the case, the Irish competition authority, the Competition and Consumer Protection Commission (“CCPC”), conducted a dawn raid on the premises of Irish Cement Limited (“Irish Cement”), which is a subsidiary of CRH plc (“CRH”), regarding alleged anti-competitive activity in the bagged cement sector in Ireland.

Two main issues that caused the proceedings to be in violation of the concerned person’s right to privacy were (i) the warrant obtained by the CCPC was drafted in broad and unspecified terms and (ii) the CCPC seized a large number of documents (96 gigabytes of data or 380,000 files) during the raid, including both legally privileged material and material relating to other business entities within the CRH group.

All five judges assigned to the case found the CCPC in violation of the right to privacy protected under Article 8 of the Convention. In fact, one of the judges Ms Justice Laffoy ruled the following:[9]

For that reason, I am satisfied that, in addressing the claim of the Respondents that there had been a breach of Article 8 of the Convention, the trial judge was correct in law in granting the declaratory relief and the permanent injunction in terms which prevents the Commission breaching the right to privacy of Mr. Lynch or CRH, or both, under Article 8 of the Convention through its continued inspection, if not restrained, of all the electronic data seized, having regard to the factual basis that, as a matter of high probability, some of the material seized was outside the scope of the search warrant.

Additionally, another judge from the case Mr Justice John MacMenamin ruled that the concerned conduct of the CPCC was considered ultra vires:[10]

For a finding of ultra vires under the Constitution, the evidence would have to be very clear, and measured against the rights, duties and interests engaged, and the degree of latitude which necessarily arises. Here the evidence is both cogent and clear. The nature of the procedure, and the subsequent timing of the various alterations in the CCPC’s position shows the extent of the original incursion. I would hold the procedures were, are, and remain, ultra vires. What was obtained, in purported compliance with the words of s.37 of the Act of 2014, was in breach of the respondents’ constitutional and ECHR right to privacy. It was not compatible with the precise requirements of Article 8 ECHR, as applied in the jurisprudence, even having regard to the margin of appreciation to be applied.

The judges of the Supreme Court of Ireland put forward that an on-site inspection constitutes a violation of the right to privacy if (i) its terms are too broad and (ii) the data inspected includes data that does not belong to the concerned undertaking.

In a similar decision, the Audiencia Nacional made evaluations regarding a decision of the Spanish National Authority for Markets and Competition Council (“CNMC”) based on a breach of the right to privacy and IT freedom via an on-spot inspection.[11]

In 2016, the CNMC imposed fines on six nougat producers for agreeing to share the market of the main distributors of white label nougat in Spain between 2011 and 2013. During the investigation process, the CNMC conducted an on-site spot inspection on the premises of Almendra y Miel SA in 2013. Almendra y Miel SA appealed the decision to the Audiencia Nacional on the grounds that the CNMC had violated the right to privacy and IT freedom (libertad informatica) when it collected the confidential and private information of an employee, which had been stored on his mobile phone. It was argued that access to these data, especially recordings of phone conversations and graphic documents in his mobile phone, had not been authorized and the data were not relevant to the CNMC’s investigation.

Ruling that, the CNMC’s inspection proceeded correctly. The Audiencia Nacional based its judgement on the following key points, according to the inspection minutes (i) the concerned employee had been present and had been asked to discard documents that were personal or protected by attorney-client privilege and (ii) after this the inspection of the remaining documents (including the mobile phone) had been held in another room without the presence of employees of the company.

In light of the Audiencia Nacional’s decision, it can be deduced that for an on-site inspection of digital data (which has the possibility of including personal data such as the inspection of mobile devices of the employees) to be in accordance with the right to privacy and freedom of communication must ensure the following procedural steps;: (i) the concerned employee must be present during the inspection and (ii) the concerned employee must determine which data are personal or protected by attorney-client privilege by themself.

Considering the abovementioned case decisions, it is clear that in the case that an on-site inspection is done without respecting the right to privacy and freedom of communication, which are protected under the Constitution and the Convention, it is deemed as unlawful and damaging to fundamental rights and liberties.

The TCA’s Liability Against Immunity of Domicile

Immunity of domicile is a fundamental right protected under both Article 8 of the Convention and Article 21 of the Constitution. The answer to the question “whether the buildings and facilities of companies are considered within the scope of the immunity of domicile” clearly will affect the legality of the TCA’s power to conduct on-site inspections.

As stated before, even an administrative independent autonomous authority who undertakes a significant duty to protect a fundamental right for the public good such as protection of competition, cannot be exempted from the applications of other fundamental rights and liberties. In addition, the aforementioned case law of the Constitutional Court and ECHR ensures that the TCA is liable to fundamental rights and liberties such as the right to a fair trial. Within this context, it is clear that the decisions and procedures of the TCA must abide by Article 8 of the Convention as well, which provides the right to privacy, immunity of domicile, and freedom of communication. The article is as follows:

Everyone has the right to respect for his private and family life, his home and his correspondence.

Since Article 8 ensures the right to privacy, immunity of domicile, and freedom of communication, the TCA comes up against Article 8 especially during on-site inspections as it conducts inspections on the premises of the undertakings and examines any of their assets and data. The ECHR stated for the first time in the Niemietz Decision that workplaces are within the scope of the immunity of domicile in line with Article 8 of the Convention.[12] In its decision, the ECHR stated that the concept of privacy also covers professional and commercial activities. According to the ECHR, professional and commercial activities can be carried out in the person’s personal residence, and on the other hand, activities that are not related to work occur in the office/company buildings as well:[13]

29. The Court does not consider it possible or necessary to attempt an exhaustive definition of the notion of “private life.” However, it would be too restrictive to limit the notion to an “inner circle” in which the individual may live his own personal life as he chooses and to exclude therefrom entirely the outside world not encompassed within that circle. Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings.

There appears, furthermore, to be no reason of principle why this understanding of the notion of “private life” should be taken to exclude activities of a professional or business nature since it is, after all, in the course of their working lives that the majority of people have a significant, if not the greatest, opportunity of developing relationships with the outside world. This view is supported by the fact that, as was rightly pointed out by the Commission, it is not always possible to distinguish clearly which of an individual’s activities form part of his professional or business life and which do not. “

30. As regards the word “home”, appearing in the English text of Article 8 (art. 8), the Court observes that in certain Contracting States, notably Germany (see paragraph 18 above), it has been accepted as extending to business premises. Such an interpretation is, moreover, fully consonant with the French text, since the word “domicile” has a broader connotation than the word “home” and may extend, for example, to a professional person’s office.

In this context also, it may not always be possible to draw precise distinctions, since activities which are related to a profession or business may well be conducted from a person’s private residence and activities which are not so related may well be carried on in an office or commercial premises. A narrow interpretation of the words “home” and “domicile” could therefore give rise to the same risk of inequality of treatment as a narrow interpretation of the notion of “private life.”

31. More generally, to interpret the words “private life” and “home” as including certain professional or business activities or premises would be consonant with the essential object and purpose of Article 8 (art. 8), namely to protect the individual against arbitrary interference by the public authorities.

The ECHR concluded that it is not possible to make a clear distinction between residence and workplace on the basis of these explanations.[14] The ECHR also emphasized that the interpretation of the concept of home to include workplaces also overlaps with the main purpose of Article 8 of the Convention, which is to protect individuals from arbitrary practices by public authorities.[15]

The Colas Est Decision of the ECHR is of significance in this context on the point of whether the undertakings’ buildings can benefit from the immunity of domicile.[16] In its decision, the ECHR examined whether the on-site inspection carried out by the French Competition Authority was in violation of the immunity of domicile within the framework of Article 8 of the Convention and ruled that the buildings and facilities of the undertaking should be considered as a residence.[17]

Pursuant to the above-mentioned case law of the ECHR, there is no doubt that workplaces will be evaluated within the concept of “home” and will enjoy the right to immunity. Therefore, it is clear that the TCA with its procedures and decisions are liable to Article 8 of the Convention and the protection it brings over immunity of domicile as well as right to a fair trial, right to privacy, and freedom of communication, which are also ensured in the Constitution. In this sense, there is no doubt that the TCA is subordinate to the Constitution and must respect these rights and liberties.

In light of all the decisions and legislation mentioned above, it has to be evaluated whether the TCA’s on-site inspections and examination of digital data respects all of the rights and liberties for which we established that the TCA is liable. The following section focuses on the issue of the TCA’s compliance with the aforementioned rights and liberties.

Do the TCA’s On-site Inspections Comply with the Protection of Fundamental Rights?

We established above that the TCA’s on-site inspections, especially the inspection of digital data, constitutes an issue with respect to the protection of fundamental rights ensured in the Constitution and the Convention. As mentioned, the TCA is required to comply with (i) the right to a fair trial, (ii) the right to privacy, (iii) the freedom of communication and (iv) immunity of domicile, at every stage of its proceedings. This is especially significant when it comes to on-site inspections and the examination of digital data during said inspections. Clearly, an inspection conducted by any authority on undertakings’ premises including every asset and data constitutes an interference with the mentioned rights and liberties. As explained before, especially with the increase in the usage of digital platforms within the context of work, the protection of the fundamental rights and liberties of the employees gains importance since the line between the assets and data that belong to an undertaking and the assets and data that belong the employees of the concerned undertaking (which are personal and private in nature) becomes harder to detect.

With these points in mind, it should be emphasized that the aforementioned fundamental rights and liberties are not absolute. Both the Convention and the Constitution envisage certain exceptions in which said rights and liberties are weighed against the public good and the authorities are allowed to interfere with these rights.

In this regard, Article 8/2 of the Convention states the following:

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Similarly, the Constitution regulates certain exceptions within Articles 20 (right to privacy), 21 (immunity of domicile) and 22 (freedom of communication) as well. According to the Constitution, no one can interfere with these fundamental rights unless there exists a decision duly given by a judge on one or several of the grounds of certain reasons such as national security, public order, prevention of crime, etc. In cases where a delay is prejudicial, a written order of an authority supported by law can be obtained as well. However, the decision of the competent authority must be submitted for the approval of the judge having jurisdiction within 24 hours. Also, the decision of the judge must be announced within 48 hours; otherwise, the decisions of concerned authorities will be automatically lifted.

As can be seen, under the right conditions, fundamental rights and liberties can be interfered with by the authorities, to some degree. While allowing interference with said rights and liberties, the legislation also provides safeguards as well. In this context, the TCA’s compliance with said conditions and safeguards should be evaluated.

In this context, the conditions foresaw by Article 8/2 of the Convention for the fundamental rights to be interfered can be summarized as follows:

The interference must be envisaged by the law,
The interference must be justified by a legitimate aim, and
The interference must be proportionate with the necessities of a democratic society.

The TCA’s on-site inspections clearly satisfy the first condition as the power itself is provided by the Competition Law. The second condition to be fulfilled is the legitimate aim. As mentioned before, the TCA undertakes the responsibility to protect competition and maintain the free market, which is a constitutional duty. Within this scope, on-site inspections are the main tool for gathering evidence. The decisions of the ECHR also adopt the same approach towards on-site inspections. Accordingly, the ECHR, in its Colas Est Decision,stated that on-site inspections carried out within the scope of the French Competition Law serve to protect the economic welfare of the state and to prevent competition violations, and in this context, ruled that the “legitimate aim” requirement in Article 8(2) of the Convention was met.[18]

The purpose of the interference with the applicant companies’ right to respect for their premises was to obtain evidence of unlawful agreements between public-works contractors in the award of roadworks contracts. The interference was manifestly in the interests of both “the economic wellbeing of the country” and “the prevention of crime.

The last condition, that public authorities must meet in order to justify their interference with fundamental rights and liberties, is the proportionality of the interference with the necessities of a democratic society. As the ECHR states, the requirement of necessity and proportionality examines whether the legislation allowing the intervention of the public authority contains an effective and sufficient safeguard against arbitrariness and abuse.[19]

The ECHR ruled that the existence of a warrant issued by a judge is necessary for an interference with fundamental rights and liberties to be in line with the proportionality condition. Indeed, the Wieser and Bicos Beteiligungen Decision includes the following determinations:[20]

In comparable cases, the Court has examined whether domestic law and practice afforded adequate and effective safeguards against any abuse and arbitrariness (see, for instance, Société Colas Est and Others, cited above, § 48). Elements taken into consideration are, in particular, whether the search was based on a warrant issued by a judge and based on reasonable suspicion, whether the scope of the warrant was reasonably limited and – where the search of a lawyer’s office was concerned – whether the search was carried out in the presence of an independent observer in order to ensure that materials subject to professional secrecy were not removed.

As mentioned before, the Constitution provides conditions similar to the Convention, for interference to the fundamental rights to be considered lawful. Indeed, a decision duly given by a judge is required for an authority to be able to interfere with the said rights. Within this context, the TCA is clearly bound by this regulation.

However, the Constitution provides another exception in cases where a delay is prejudicial. In such cases, a written order of an authority supported by law, which is submitted for the approval of a judge having jurisdiction within 24 hours, can be obtained as well. Thus, the TCA is obliged to obtain a judicial decision in order to conduct an on-site inspection, especially if it includes the digital data of employees since such data can be in personal and private nature; or it can submit its decision to conduct an on-site inspection to a court within 24 hours. This means that the TCA’s decisions regarding on-site inspections can be considered lawful in sense of the protection of fundamental rights, if they are subjected to either a prior decision obtained from a judge or an ex post judicial review.

It can be deduced that an ex post judicial review can substitute for obtaining the approval of a judge for the TCA’s on-site inspections to be considered lawful. In this context, the ECHR provides comprehensive evaluations in its Delta Pekarny Decision, with respect to the aforementioned of ex post judicial review:[21]

While the Court has emphasized in its previous judgments that Member States may consider it necessary to resort to measures such as search and seizure in order to provide material evidence of unlawful conduct, the legislation and practice of Member States in this area should provide appropriate and sufficient safeguards against abuse of such powers. In similar cases, the Court has made an assessment about whether the search is carried out based on a search warrant issued by a judge, whether the scope of the said warrant is reasonable and whether the suspicion of the person concerned is based on reasonable grounds. Regardless of the power of discretion that the court grants to Member States in this area, it should be twice as much careful in situations where the national law authorizes state authorities to conduct searches without the permission of a judge. In this context, the Court emphasized that the lack of a search warrant in cases regarding the protection of the rights recognized by Article 8 against arbitrary practices of public authorities can be compensated by an ex post facto judicial review.

(…)

In practice, [an effective ex post facto judicial review] requires the persons concerned to be able to obtain effective judicial review of the substantive and legal basis and execution of the concerned measure. In the event of an unlawful transaction, the legal remedy or ways to which the relevant person can apply should provide an appropriate remedy to the said person.

In the current case, the fact that the documents pertaining to the administrative process, which the Authority predicted to be discovered in the building of the plaintiff company before the on-site inspection takes place, are not concretely specified, which makes it even more necessary to effectively review the legality and necessity of the on-site inspection.

(…)

The Court found that neither of the two processes in question conducted an examination of the lawfulness of the on-site inspection and that there was no legal remedy to question the conduct of the on-site inspection. Although the highest administrative court made an assessment regarding the legal basis, legitimate aim and proportionality in its decision dated 29.05.2009, it essentially focused on the issues regarding the scope of the powers granted to the competition authority personnel by the law from the moment the on-site inspection was decided and whether the said personnel acted within the limits of these powers. (…) It should be noted that the courts applied did not consider the facts that led the Authority to conduct an on-site examination of in the context of the present case. Therefore, the exercise of the Authority’s power to assess the appropriateness, duration and extent of the on-site inspection has not been made the subject of judicial review. In this framework, the determination of the local court that; the Authority’s suspicion regarding a certain behaviour in the market arises from a communication between the competitors, whose evidence can only be revealed through the findings obtained during the on-site investigation, constitutes a justification for the intervention in the relevant competitor’s field will not be considered sufficient.

It should be emphasized based on the issues explained above that the plaintiff company cannot resort to an appropriate legal remedy under the assumption that on-site inspection is considered unlawful. (…)

It is determined that; the on-site investigation is carried out in the presence of the plaintiff company representatives, the Authority does not have the right to seize the documents, only copies of the relevant documents are received, and the personnel is subject to the confidentiality obligation. However, the Court evaluated that the procedural safeguards in question were not sufficient to prevent the risk of abuse of the Competition Authority’s powers in a scenario where there was no prior court decision, no effective ex post facto judicial review of the necessity of the relevant measure, and no regulation on the destruction of the copies obtained.

The Court has ruled that these findings, as applied in the present case, are sufficient to conclude that the ex post facto judicial review did not provide the plaintiff company with sufficient safeguards against arbitrariness and that the interference with the plaintiff company’s rights could not be regarded as narrowly proportional to the legitimate aim pursued.

For the reasons mentioned above, Article 8 of the Convention has been violated.

In light of the abovementioned decision of the ECHR, the lack of a warrant issued by a judge prior to the on-site inspection constitutes a violation of Article 8 of the Convention and there exists no effective ex post judicial review that could provide compliance with the law.

It should be emphasized that a decision of an administrative authority to conduct an on-site inspection should be evaluated by a judicial authority whether before or after the inspection itself, and the scope of the said evaluation should cover the issues regarding whether the concerned warrant is reasonable and based on reasonable suspicion. The ECHR rules that in cases where the national law authorizes administrative authorities to conduct searches without the permission of a judge, it is crucial to have a judicial review of such actions. Otherwise, the protection of the fundamental rights and liberties against arbitrary practices on the part of public authorities cannot be provided.

The ECHR states that even though an ex post judicial review can provide protection for the fundamental rights, a judicial review limited to the legality issues cannot satisfy the required legal safeguards. In order to protect individuals from arbitrary conducts and abuse of power by administrative authorities, a judicial review should cover issues such as (i) the facts that led an administrative authority to conduct an on-site examination; (ii) the appropriateness, duration and extent of the on-site inspection; and (iii) whether evidence related to the alleged actions can be revealed only through the findings expected to be obtained during the on-site investigation. The lack of such ex post judicial review covering said issues is considered as a violation of the fundamental rights by the ECHR.

In light of this, individuals should have the ability to seek remedy before a judicial authority regarding the substantive and legal basis and execution of the conduct of the authorities. . Additionally, an ex post judicial review also should be efficient in the sense that it should grant individuals a remedy in a timely manner. This means that a person whose fundamental rights and liberties are violated via an on-site inspection of his digital data should be able to bring this conduct before a court immediately and should not be compelled to wait for a reasoned decision to be given on the case for which the on-site inspection was conducted. However, in most cases, this applies to the TCA’s procedures as well. An on-site inspection can be made subject to a judicial review only after the reasoned decision is given on the whole case, which can take up to two years. In a best-case scenario, if a decision on the hindering of on-site inspection is given, the concerned individuals can take the reasoned decision to a court; however, this decision itself takes almost half a year to be given generally.

Irish competition law constitutes a unique example in this context. Since the Irish Constitution limits the power to impose penalties and sanctions to the judicial system, only the courts have the power to make enforcement decisions in respect of breaches of competition law. Such decisions may be appealed to a higher court in the same manner as in other cases. In addition, cartel activity was criminalized in Ireland in 1996, and the penalties for cartel offences were increased in 2002 with jurisdiction for cartel offences now falling to the Central Criminal Court. And finally, with the Competition (Amendment) Act of 2012, measures were strengthened further, and both fines prison sentences were increased.

With Regulation 1/2003 in the EU, every Member State are allowed to decide on which bodies they would give authority to enforce competition rules and the procedure. Since this regulation, while the trend amongst Member States would appear to be converging on the EU administration-centred model, Ireland has implemented a mixed enforcement system whereby investigating and adjudicating powers are shared between administrative and judicial organs, using the criminal infrastructure.

Therefore, in order to be fined under Irish competition legislation, an individual or undertaking must be convicted of a criminal offence by the courts. Thus, the CCPC investigates alleged breaches of the legislation and recommends prosecution to the Director of Public Prosecutions.

This ensures the abovementioned legal safeguards to the protection of fundamental rights and protects individuals from arbitrary interferences by administrative authorities since the appropriateness condition is satisfied by a judicial review that examines substantive issues of the CPCC’s conduct.

When we evaluate the proceedings of the TCA, we see that the it does not acquire a judge’s decision prior to an on-site inspection and does not submit its inspections or the findings themselves to an ex post judicial review. On top of this, with recent developments, the TCA freely exercises its power to conduct on-site inspection over digital data as well, which poses a threat to the personal data and rights of individuals. Therefore, it is clear that the TCA’s on-site inspections are in violation of fundamental rights and liberties.

On top of all the points in question mentioned above, another issue that should be evaluated is the TCA’s administrative fines on hindering of on-site inspections. While the legality of such inspections and the findings obtained through them are questionable in the context of the protection of fundamental rights, and thus any decision depending on them should be evaluated within the same scope, the TCA’s decisions on hindering of on-site inspections pose another issue. Especially with the expansion of on-site inspections over digital data, the TCA’s decisions regarding the hindering of on-site inspections rose in 2021. In light of all information above, in the following chapter, we will examine some of the TCA’s recent decisions regarding the hindering of on-site inspections and evaluate all the points mentioned in this article in practice.

The TCA’s Decisions on the Hindering of On-Site Inspections

Article 16/1-d of the Competition Law envisages an administrative fine for the hindering of an on-site inspection:

In those cases where

a) False or misleading information or document is provided in exemption and negative clearance applications and in authorization applications for mergers and acquisitions,

b) Mergers and acquisitions that are subject to authorization are realized without the authorization of the Board,

c) In implementation of Articles 14 and 15 of the Act, incomplete, false or misleading information or document is provided, or information or document is not provided within the determined duration or at all,

d) on-site inspection is hindered or complicated,

the Board shall impose on natural and legal persons having the nature of an undertaking and on associations of undertakings or members of such associations, an administrative fine by one in thousand of annual gross revenues of undertakings and associations of undertakings or members of such associations which generate by the end of the financial year preceding the decision, or which generate by the end of the financial year closest to the date of the decision if it would not be possible to calculate it and which would be determined by the Board for those mentioned in sub-paragraphs (a), (b) and (c), and by five in thousand of their gross revenues to be calculated in the same manner for those mentioned in sub-paragraph (d).

As can be seen, the Competition Law regulates the imposition of an administrative fine of 0.5% of an undertaking’s gross revenues in cases where an on-site inspection is hindered or complicated. Such fine is definitely a deterrent tool provided to the TCA by the law.

Until recently, the utilization of this tool was rare in practice. However, with the inspection of digital data, the number of decisions given on the hindering of on-site inspections has risen; since, as mentioned before, the grey area between the TCA’s powers and protection of individuals’ fundamental rights has intensified. In this section, we will look at some of the TCA’s decisions on this issue and evaluate the controversial issues highlighted in this article in practice.

The TCA’s Decision Dated 08.07.2021 and Numbered 21-34/452-227 (“P&G Decision”)

Within the scope of the investigation carried out by the TCA’s decision dated 07 May 2020 and numbered 20-23/298-M, an on-site inspection was conducted at Procter and Gamble Tüketim Malları Sanayi A.Ş. (“P&G”) on 19 May 2021. According to the decision, the employees of P&G had been warned that they should not delete any e-mails or documents from the computers, e-mails, and other data storage devices of the employees from the moment the on-site investigation was initiated by the inspection team and until the on-site inspection was completed; otherwise, this situation may be detected and evaluated as hindering or complicating the on-site inspection regardless of the deleted content.

Upon the suspicion that one of the employees had deleted his Whatsapp messages after the investigation started, and upon the request of the TCA personnel, another employee was called to the company to confirm this situation and a warning was given to him not to delete any data from his phone. The phone of the employee who came later was examined with the help of forensic information devices and it was seen that the messages in some Whatsapp groups had been deleted. When asked about this, the employee stated that he had deleted messages from some of his personal Whatsapp groups.

In the decision, the TCA put forward the argument that groups with the names “The team” and “(…) Sales” of which P&G directors were members had also been deleted, contrary to the claim that only personal messages had been deleted. Within the scope of the inspection, the content of the communication in the Whatsapp groups could not be accessed by the TCA due to the permanent deletion of the messages. However, it was emphasized in the decision that P&G employees had been informed in advance that the deleted messages would be deemed to have competitive elements, regardless of their content.

Noting that some emails had been deleted as well as Whatsapp messages, the TCA decided that P&G hindered and complicated the on-site inspection and imposed a fine of five per thousand of the undertaking’s 2020 turnover.

The first of the interesting elements in the decision is, of course, the examination of personal phones. As stated in the previous sections of this article, this practise violates the fundamental rights and liberties of individuals. In addition, the warnings made by TCA that no data should be deleted from the phones also was inaccurate in our opinion, as such statements do not make any distinction between personal data and data related to work. Since the scope of an on-site inspection is limited to data of the undertaking, it should not be considered lawful for the TCA or its personnel to issue such warnings that restrict the employees’ right of disposition on their personal data. Furthermore, the statement in the decision that the deleted messages will be deemed to have competitive elements, regardless of their content, is quite problematic in our opinion. As understood from the decision, the names of some of the deleted Whatsapp groups (such as “Super Husbands,” “Decease – Saim Gülbay”) give the impression that personal correspondence was made. In any case, as the ECHR underlines in its Niemietz Decision, the line between personal and professional life is vague and two parts of an individual life overlap in their residence, office, and in their communications. In this regard, the TCA’s assessment of all deleted conversations assuming that they have competitive elements, regardless of their content, is both against the presumption of innocence and strengthens the restriction on the right of disposition on individuals’ personal data.

The TCA’s Decision Dated 27 May 2021 and Numbered 21-27/354-173 (“Çiçeksepeti Decision”)

Within the scope of the investigation carried out by the TCA’s decision dated 01 April 2021 and numbered 21-18/213-M, an on-site inspection was conducted at Çiçeksepeti İnternet Hizmetleri A.Ş. (“Çiçeksepeti”) on 08.04.2021.

In the examination carried out, it was detected that a Whatsapp message had been sent to another Çiçeksepeti official on the day of the inspection, and this message had been deleted later. When the mobile device belonging to the person to whom the message was sent was examined, it was determined that the Whatsapp message in question did not exist.

The Çiçeksepeti official who sent the deleted message defended himself, saying that (i) he sent messages in order to notify his private contacts that he would not be reachable during the inspection and (ii) made correspondences with his work contacts in order to postpone a meeting due to the inspection. He stated that the deleted message had been sent to a private individual and that he therefore had deleted the message.

Since the deleted message could not be accessed, the TCA stated in its decision that the access of the TCA’s personnel to possible evidence and findings during the on-site inspection was complicated and hindered. Regarding the defence that the message had been deleted because it was a message sent to the wrong person, the TCA stated that the warning given to Çiçeksepeti before starting the on-site inspection that no deletion should be made had been disregarded.

In addition to the deleted message mentioned above, the TCA claimed in the decision that there had been another message deleted, which shows Çiçeksepeti employees tried to delete documents during the on-site inspection. Consequently, the TCA decided that Çiçeksepeti had hindered and complicated the on-site inspection and imposed a fine of five per thousand of the undertaking’s 2020 turnover.

As in the P&G Decision, problematic issues such as the examination of personal mobile devices of the employees and warnings to restrict the employees’ right of disposition on their personal data are also found in the Çiçeksepeti Decision. On the issue of not making a distinction between personal data and data related to the undertaking, the TCA makes assumptions regarding the contents of deleted messages and imposes fines on the grounds that the on-site inspections had been hindered without actually establishing that the deleted correspondences had been related to the undertaking and in the scope of the on-site inspection. In this respect, it can be said that the decision is quite controversial as well.

The TCA’s Decision Dated 26 December 2019 and Numbered 19-46/793-346 (“Askaynak Decision”)

Within the scope of the preliminary inquiry carried out by the TCA’s decision dated 26 September 2019 and numbered 19-33/493-M, an on-site inspection was conducted at Kaynak Tekniği San. ve Tic. A.Ş. (“Askaynak”) on 18.12.2019.

During the on-site inspection carried out at another undertaking, which was a party to the same preliminary investigation, a finding was obtained that the general manager of Askaynak had stated that it was risky to communicate through corporate communication channels and mobile phones and suggested that communications be carried out via personal e-mails. For this reason, the TCA’s personnel wanted to examine the personal e-mail account of the general manager of Askaynak, in addition to his corporate e-mail account. Thereupon, the account of the general manager was entered and the personnel of the TCA stated that they were able to examine the contents because an e-mail indicating that the said although the e-mail account was used for business purposes the general manager did not allow the examination. However, the TCA’s personnel later showed the general manager the finding from the other undertaking, whereupon the general manager allowed the investigation to be carried out on his personal e-mail account.

It was determined that while there had been 96 unread e-mails when the e-mail account was first accessed, only 73 unread e-mails remained at the time the general manager allowed the investigation. The deleted e-mails could not be accessed due to the technical structure of the e-mail account. The general manager of Askaynak stated that the e-mails he deleted had contained personal, private, and family information.

In the decision, the TCA stated that the personal e-mail account used for business could be examined. In this context, not allowing the examination of the relevant e-mail account and deleting some e-mails were considered as hindering on-site examination and a fine of five per thousand of the undertaking’s 2018 turnover was imposed.

Although it can be claimed that the personal e-mail account had been examined on a reasonable suspicion, such suspicion should have been reviewed prior to or after the on-site inspection by a judicial authority since it was a clear violation of the individual’s right to privacy. Furthermore, the imposition of a fine for the deletion of private emails was not lawful since personal data is not in the scope of the TCA’s power. In order for such decision to be considered in compliance with the protection of fundamental rights, the TCA should have been able to prove that concerned emails were work-related.

Resolution and Concluding Remarks

To conclude, the benefits and necessity of competition law are proven from the point of view of economics and human rights. However, the enforcement of competition should not harm fundamental rights and liberties; otherwise, it defeats the purpose.

In light of the information and case law provided above, the TCA’s decisions and conduct are considered to be of a criminal nature. Its on-site inspections interfere with the protection of fundamental rights, specifically the right to privacy, immunity of domicile and freedom of communication. Especially, the TCA’s on-site inspections of digital data cause a significant grey area in which the protection of fundamental rights and liberties are violated by the TCA’s power.

Although administrative authorities are and should be able to interfere in these rights for the public good if needed, they must do so while respecting the legal safeguards in order to prevent arbitrariness and the abuse of power. The Convention and the Constitution in which these rights are protected envisages legal safeguards for the authorities who need to exercise their power over individuals. Therefore, the TCA, which must uphold these regulations, should act in compliance with the legal safeguards and procedural steps envisaged. According to the Constitution, fundamental rights cannot be interfered with by anyone unless there exists a decision duly given by a judge on one or several of the grounds of certain reasons such as national security, public order, prevention of crime, etc. In cases where a delay is prejudicial, a written order of an authority supported by law can be obtained as well. However, the decision of the competent authority must be submitted for the approval of the judge having jurisdiction within 24 hours. Also, the decision of the judge must be announced within 48 hours; otherwise, the decisions of the concerned authorities will be lifted automatically.

For such conditions to be satisfied, the TCA should apply to a judicial authority prior to its on-site inspections for its decisions and conduct to be reviewed substantially and obtain a judge’s decision. In this context, a specific/expert judicial body could be established or at least an existing body could be authorized to oversee the TCA’s conduct. The Irish model can set an example in this scope. Even if this measure cannot be realized, an ex post judicial review should be provided for the TCA’s decision and conducts.

In conclusion, the abovementioned measures are necessary for the protection of fundamental rights, the right to privacy, immunity of domicile, and freedom of communication for it is clearly seen that the TCA’s execution of its power during on-site inspection is controversial. And with the addition of the power to inspect digital data, the controversy only gets deeper.

[1] Case T-168/01 GlaxoSmithKline Services Unlimited v Commission // European Court Review. – 2006.- II-2969.

[2] Competition Law & Human Rights Protection: Controversial New Dimensions, Ksenya SMYRNOVA, Institute of International Relations, National Taras Shevchenko University of Kyiv, Ucraina.

[3] ECHR’s Decision on the Case of Engel and Others v. The Netherlands, with the application dated 08.06.1976 and numbered 5100-5102/71.

[4] ECHR’s Decision on the Case of Engel and Others v. The Netherlands, with the application dated 08.06.1976 and numbered 5100-5102/71, para. 81.

^[5] ECHR’s Decision on the Case of Adolf v. The Austria, with the application dated 26.03.1982 and numbered 8269/78.

[6] ECHR’s Decision on the Case of Menarini Diagnostics S.R.L. v. Italy, with the application dated 27.09.2011 and numbered 43509/08.

[7] ECHR’s Decision on the Case of Jussila v. Finland, with the application dated 23.11.2006 and numbered 73053/01, para. 43.

[8] SupremeCourt of Ireland’s Decision titled CRH Plc, Irish Cement Ltd & ors -v- The Competition and Consumer Protection Commission and dated 29.05.2017 with Record Number 65/2016.

[9] SupremeCourt of Ireland’s Decision titled CRH Plc, Irish Cement Ltd & ors -v- The Competition and Consumer Protection Commission and dated 29.05.2017 with Record Number 65/2016, para. 87.

[10] SupremeCourt of Ireland’s Decision titled CRH Plc, Irish Cement Ltd & ors -v- The Competition and Consumer Protection Commission and dated 29.05.2017 with Record Number 65/2016, para. 120.

[11] Audiencia Nacional’s D. Claudio, Almendra y Miel SA y Confectionary Holding SL v CNMC Decision dated 18.07.2016, numbered 136/2014, ES:AN:2016:2986, Accessed on OECD Issues Note: Breakout session 1: Unannounced Inspections in the Digital Age, OECD GLOBAL FORUM ON COMPETITION, 23.10.2018.

[12] ECHR’s Decision on the Case of Niemietz v. Germany, with the application dated 16.12.1992 and numbered 13710/88.

[13] ECHR’s Decision on the Case of Niemietz v. Germany, with the application dated 16.12.1992 and numbered 13710/88, para. 29-31.

[14] ECHR’s Decision on the Case of Niemietz v. Germany, with the application dated 16.12.1992 and numbered 13710/88, para. 30.

[15] ECHR’s Decision on the Case of Niemietz v. Germany, with the application dated 16.12.1992 and numbered 13710/88, para. 31.

[16] ECHR’s Decision on the Case of Société Colas Est and Others v. France, with the application dated 16.04.2002 and numbered 37971/97.

[17] ECHR’s Decision on the Case of Société Colas Est and Others v. France, with the application dated 16.04.2002 and numbered 37971/97, para. 40-41.

[18] ECHR’s Decision on the Case of Société Colas Est and Others v. France, with the application dated 16.04.2002 and numbered 37971/97, para. 48.

[19] ECHR’s Decision on the Case of Société Colas Est and Others v. France, with the application dated 16.04.2002 and numbered 37971/97, para. 44.

[20] ECHR’s Decision on the Case of Wieser and Bicos Beteiligungen Gmbh V. Austria, with the application dated 16.10.2007 and numbered 74336/01, para. 57.

[21] ECHR’s Decision on the Case of Delta Pekarny As v The Czech Republic, with the application dated 16.10.2007 and numbered 74336/01, para. 57.