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Obstruction of competition law investigations: Don’t keep the Turkish Competition Authority waiting

December 2019 – It is a rare occasion, though increasing somewhat in frequency, for competition law to be a hot topic in Turkey’s mainstream press. One example is the recent dispute between Google and the Turkish Competition Authority (TCA). On 7 November 2019, the TCA imposed a daily 0.5% fine on Google’s Turkish turnover for not complying with the obligations set forth in the Turkish Android case that was decided on 19 September 2018. Subsequently there was news about Google ceasing to issue licenses for new Android phone models sold in Turkey[1]. On 16 December 2019, the TCA issued a press release stating that Google must comply with the decision and take necessary steps as it did in the EU and Russia.

As the dispute between the TCA and Google intensifies, we could not let another interesting TCA decision concerning Unilever Turkey to disappear into the abyss. Here’s what happened:

The TCA initiated a preliminary investigation in respect of Unilever Sanayi ve Ticaret Türk Anonim Şirketi (“Unilever”) on 17 December 2018. As part of the preliminary investigation, TCA officers conducted an inspection at Unilever’s premises on 18 June 2019. During the on-site inspection, they concluded that Unilever acted in a way that hinders and/or complicates the preliminary investigation. As a result, the TCA imposed an administrative monetary fine of 0.5% on Unilever’s Turkish turnover[2].

What happened at Unilever

In the decision it was stated that the case handlers entered Unilever’s building at 10:10 am and initiated the inspection. During the procedure they requested to examine e-mail correspondence belonging to Unilever employees, which is a very normal procedure. Unilever employees stated that this examination should be done through an e-Discovery programme and required permission at the global level. The relevant permission was given at 17:45 p.m. and e-mail records of Unilever employees could only be examined nearly seven and a half hours later.

Based on the report of the case handlers, the TCA concluded that, since this constitutes an obstruction to the inspection pursuant to Article 16/1 (d) of Law No. 4054 on the Protection of Competition (“Law No. 4054”), an administrative monetary fine shall be imposed on Unilever. The amount of the fine, which is 0.5% of Unilever’s turnover in Turkey, is automatic and the TCA does not have any discretion on setting the amount. The 0.5% amount can be disproportionate, especially if at the end of the investigation it is determined that there was no restriction of competition, which true for many cases.

TCA’s investigative powers

Article 15 of Law No. 4054 grants the TCA a broad set of investigative powers. The TCA is entitled to request copies of information, documents, books and other instruments without any delay. In addition, the TCA is entitled to request a written or verbal statement on particular issues from the company under investigation and to perform an on-site examination of any assets of the company.

As we can see from the Unilever case, it is important not only to provide access to documents during an on-site inspection but also to provide them in a timely manner. The TCA does not hesitate to trigger proceedings that will result in a fine. For example, even a 40-minute delay has been found to be obstructing an inspection, and as a case[3] brought before the Council of State demonstrates, while a 40-minute delay seems to be a short period of time, it is enough to remove materials subject to an inquiry from the building where the examination is being conducted. In a similar case regarding the company MOSAS[4], the TCA issued a fine for causing a two-hour delay of the inspection by cutting of Internet access, and this was found to be hindering the inspection among other acts to obstruct the investigation, such as deleting certain files and turning off the building’s electricity supply. The MOSAS case is also interesting as the TCA investigators requested the mobile phone of one of the employees and inspected their Whatsapp communications with other employees by accessing them through a desktop application, which is rare. Whatsapp communications included messages such as “cut the Internet”, “disconnect the modem” and “delete the e-mails.”

So there is one simple rule of thumb for providing access during an on-site inspection of the TCA: comply with TCA requests as soon as possible.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

For more information please contact Bulut Girgin, Counsel and Head of the Competition practice, at bgirgin@gentemizerozer.com, and Orhan Can Sevener, Associate, at ocsevener@gentemizerozer.com.


[1] Competition Board decision dated 7 November 2019 and numbered 19-38/577-245

[2] Competition Board decision dated 7 November 2019 and numbered 19-38/584-250

[3] Council of State Decision for the 13th Circuit decision dated 22 March 2016 with file number of 2011/2660 E. and decision number of 2016/775 K.

[4] Competition Board decision dated 21 June 2018 and numbered 18-20/356-176.