{"id":16523,"date":"2023-02-15T15:37:02","date_gmt":"2023-02-15T15:37:02","guid":{"rendered":"https:\/\/www.pieravukatlik.com\/?p=16523"},"modified":"2023-04-24T14:30:37","modified_gmt":"2023-04-24T14:30:37","slug":"rekabet-kurulunun-yerinde-inceleme-yetkisinin-menzili-daha-da-mi-artiyor","status":"publish","type":"post","link":"https:\/\/www.pieravukatlik.com\/en\/yayinlarimiz\/guncel-yazilarimiz\/rekabet-hukuku\/rekabet-kurulunun-yerinde-inceleme-yetkisinin-menzili-daha-da-mi-artiyor\/","title":{"rendered":"Is the TCA\u2019s Power to Conduct On-S\u0131te Inspect\u0131ons Expand\u0131ng, Even More?"},"content":{"rendered":"

Law no. 4054 on the Protection of Competition (\u201cCompetition Law<\/strong>\u201d) provides the Turkish Competition Authority (\u201cTCA\u201d) with the power to conduct on-site inspections at undertakings and associations of undertakings. This power and its exercise are subject to various discussions; because the Competition Board's power to conduct on-site inspection is quite extensive, and serious administrative fines are envisaged in the case that such on-site inspections are hindered complicated. Especially with the amendments made in 2020[1]<\/a> , the Board\u2019s authority over digital data has been expanded and detailed.<\/p>\n\n\n\n

With the amendments made in 2020, within the framework of Article 15 of the Competition Law, if it deems necessary, the Board; can examine all types of data and documents of undertakings kept on physical or electronic media and in information systems, and take copies and physical samples thereof. Prior to the aforementioned amendment, the relevant law provision was interpreted broadly and this type of data was also under inspection in practice, but the increasing use of instant messaging platforms and mobile devices in business life with digitalization made it necessary to make changes in the legislation which would bring legal certainty to the concerned inspections. In this context, during on-site inspections, besides written records of undertakings; correspondences kept in cloud systems and local servers, or computers or mobile devices used by employees for business purposes can be examined. Although this authority is granted for the protection of the free market and competition, hence the social welfare (or, according to the adopted school of thought, the consumer welfare); it needs to be balanced against fundamental rights and freedoms such as right to privacy, immunity of domicile and freedom of communication.<\/p>\n\n\n\n

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You can find our article on the lawfulness of the TCA's on-site inspection powers against fundamental rights and freedoms, especially within the scope of digital data, here <\/a>.<\/em><\/p>\n\n\n\n

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In this context, with the course of the country's economy in recent years, we see an increase in the number of large-scale investigations including numerous undertakings such as the \"labor market gentleman's agreements investigation\" and the \"retail market cartel investigation\", which the Competition Board conducts quite extensively in many sectors. Naturally, many on-site investigations are carried out within the framework of investigations involving such a large number of undertakings, and many undertakings unfamiliar with competition law processes are faced with these procedures for the first time. As a matter of fact, we see that; the Competition Board\u2019s decisions to impose administrative fines as a result of the hindering\/complication of on-site inspection are increasing in parallel.<\/p>\n\n\n\n

The TCA\u2019s decision dated 08.09.2022 and numbered 22-41\/560-224[2]<\/a> , whose reasoned version published on 13.01.2023, (\u201c<\/strong>Akcom Decision<\/strong>\u201d) is one of the examples of such hindering of on-site inspection. However, the interesting aspect of this decision is that the undertaking, which was fined pursuant to Article 16 of the Competition Law due to the hindering of on-site inspection, is not actually a party to the investigation (which is the basis of the on-site inspection), and does not even operate in the same relevant product market as the investigation.<\/strong><\/p>\n\n\n\n

An investigation has been launched with the TCA\u2019s decision dated 12.05.2022 and numbered 22-21\/355-M; as to whether 17 enterprises operating in the field of egg production are in violation of Article 4 of the Competition Law. The TCA\u2019s officials, while conducting on-site inspection at the headquarters of A.B. G\u0131da San. ve Tic. A.\u015e. (\u201cAB G\u0131da<\/strong>\u201d) in \u00dcsk\u00fcdar on 17.05.2022, requested to examine the information systems of the undertaking; however, as stated in the decision, it has been seen that said services were outsourced by Akcom Bili\u015fim ve Teknoloji Hizmetleri LTd. \u015eti. (\u201cAkcom<\/strong>\u201d).<\/p>\n\n\n\n

Thereupon, the day after the concerned on-site inspection, with the Board ruled an on-site inspection to be conducted at Akcom with its decision dated 18.05.2022 and numbered 22-23\/383-M.<\/p>\n\n\n\n

Upon this decision, an on-site inspection was conducted by the TCA\u2019s officials at Akcom's \u00dcmraniye address on 26.05.2022. The officials, who arrived to the address of the undertaking at 12:00, reached the owner of the company via phone call since it was determined that there was no one present. The officials has made explanations regarding the on-site inspection, requested the owner of Akcom to come to the address and informed him with respect to the administrative fines which could otherwise be applied. The owner of the company stated that he could only come to the company after 3-4 hours due to the fact that he had various meetings within the scope of the service he provides to his customers. Afterwards, despite the phone calls and WhatsApp messages, the Akcom owner could not be reached until 16.00. As a result, on-site inspection could not be carried out and an official report was prepared accordingly.<\/p>\n\n\n\n

In the light of this information, pursuant to the subparagraph (d) of the first paragraph of Article 16 of the Competition Law; it has been decided by the TCA that an administrative fine amounting to five in thousand of its gross revenues shall be imposed on Akcom, due to hindering of on-site inspection; however, since this amount is even below the lower limit of the penalty stipulated in the same provision, in accordance with the Communiqu\u00e9 on Lower Limit of Administrative Fine[3]<\/a><\/strong><\/em> , an administrative fine of 47.409 TL has been imposed.<\/p>\n\n\n\n

However, the explanations of the owner of Akcom, both stated during the phone call on the day of on-site inspection and included in the letter submitted to the TCA\u2019s records on 13.06.2022 and with record number 28811, are of significance. The owner stated that:<\/p>\n\n\n\n