November 2021 – The Turkish Competition Authority is equipped with a broad range of powers to determine the material facts of a case and assess allegations concerning violations of Turkish competition law. Perhaps the most important of these powers is the ability to carry out on-site inspections at undertakings’ premises. Accordingly, the investigators of the Authority can visit the undertaking under investigation and examine evidence in physical or electronic media. The undertakings are obliged to cooperate with the Authority and provide them with the documents and other materials that they need. The hindrance of an on-site inspection is sanctioned by Article 16 of Law No. 4054 on the Protection of Competition (“the Law”). Further, following the amendment to the Law in 2020 and the Guidelines for the Examination of Digital Data during On-site Inspections (“Digital Investigation Guidelines”) issued subsequently, the debate as to whether the Authority can examine the content on mobile devices such as WhatsApp messages have come to an end.
The Competition Board’s recent Çiçeksepeti, Unmaş and IGSAŞ decisions reveal how this power is used and what kind of behaviour undertakings should avoid. These three decisions confirm that the case handlers in charge of an on-site inspection are entitled to examine not only company-owned computers and phones, but also personal mobile phones that employees use for business purposes, including the messages in social messaging platforms such as WhatsApp. Moreover, messages that are deleted once an inspection has begun are automatically considered as obstructing the on-site inspection and cause an administrative fine of 0.5% of the annual turnover of the company, pursuant to Article 16 of the Law.
So, what options do undertakings have?
We observe that undertakings generally act in cooperation with the investigators and professional staff of the Authority when they arrive for an on-site inspection. Nevertheless, when reviewing the Board's decisions, we understand that undertakings are often fined for hindering or obstructing the on-site inspection. The main reason for this is that the employees delete various records on their own initiative. The fact that the deleted content can be accessed through forensic e-discovery tools does not prevent the imposition of administrative monetary fines on the undertaking concerned. In the Unmaş decision, the Board explained this point with the following statements: “… it is considered that the fact that the deleted data could be accessed by way of computer forensic tools does not have an impact on the nature of the act of hindering/obstructing the on-site investigation. It can be concluded that the acknowledgement of the contrary will be considered as rewarding the undertakings in cases where the undertakings delete the said data but the deletion cannot be detected by the forensic computing tools.”
First and foremost, undertakings should ensure that all employees, including security staff as well as those responsible for information technologies and human resources, adopt competition law awareness. Undertakings can achieve this by way of effective competition law training. It would also be of great benefit to create guidelines to determine the duties of each employee during on-site inspections. If these are supported by a “mock” on-site inspection, employees can become sufficiently prepared for a potential real-world on-site inspection. Moreover, in case of a dawn raid, undertakings may also explain the importance of working in full cooperation with the investigators and professional staff of the Competition Authority by sending information messages from all platforms used by the company, warning that no records should be deleted (and that deleted records can be recovered), and that documents should also not be destroyed. In this context, employees should be reminded that the case handlers of the Competition Authority are authorised to examine all types of documents, and therefore, waiting for permission from the company headquarters or other authorities in this regard can result in an administrative monetary fine.
Prior examples demonstrate that undertakings may have to pay a high amount of penalties if the on-site inspection is hindered or made difficult, regardless of whether such preliminary investigations expanded into full-fledged investigations or a violation was found within the scope of the investigation. This, as we mentioned above, is due mostly to the conduct of individual employees, which may stem from the pressure of the situation rather than from the general policy of the company.
In addition to the above, undertakings can also opt for corporate messaging solutions instead of messaging platforms where personal communication and corporate communication are intertwined, in order to prevent the reflexes of employees to delete content on their phones with the motive of protecting their privacy.
 The Competition Board’s Çiçeksepeti decision, dated 27.05.2021 and numbered 21-27/354-173.
 The Competition Board’s Unmaş decision, dated 20.05.2021 and numbered 21-26/327-152.
 The Competition Board’s İstanbul Gübre Sanayi A.Ş. decision, dated 12.08.2021 and numbered 21-38/544-265.