The Decision of the Constitutional Court Regarding the Authority of On-Site Inspection dated 20.06.2023.
The Decision of the Constitutional Court Regarding the Authority of On-Site Inspection of the Competition Authority dated 20.06.2023.
With its judgment (The Judgment Date 23/3/2023. Appeal No: 2019/40991) of 20.06.2023 (the judgment or ruling), the Constitutional Court (the Court) raised a significant question relevant to the Competition Board's (the Board) authorization to conduct an on-site investigation. In the judgment, it is seen that without a judge's decision the use of on-site inspection authority, in the concrete case, is considered as a violation of the right to inviolability of residence.
The process related to the judgment has started with the conclusion of the investigation (18.04.2011 dated and 11-24/464-139 numbered Board Decision.) which is based on the allegations that the negotiations of various undertakings operating in the automotive market regarding the sharing of stock information, target sales strategy, and price strategies, which are in the nature of trade secrets, constituted a violation of Article 4 of the Law on the Protection of Competition No. 4054 (Law No. 4054). Following the investigation process Ford Automotive Industry Inc. (Ford), one of the parties to the investigation, took the Board decision to the judicial process and the judicial process continued with the review of the ruling at the Court.
Upon Ford's claim that in accordance with Article 21 of the Constitution, the right to inviolability of residence can only be interfered with a judicial decision, the Constitutional Court concluded that the concept of "residence" also includes workplaces. In this context, the office where a person continues her profession, the registered center where the activities of a company run by a private person are carried out, registered centers, branches, and other workplaces of legal entities are also included in this scope. ( The Judgment para. 54.)
In other words, the Court evaluated the workplaces as headquarters, branches, and facilities as residences within the scope of Article 21 of the Constitution. Also, the Court evaluated that competition expert's on-site inspection authority granted by Article 15 of Law No. 4054 and as a rule, the authority that allows on-site inspection without a judge's ruling violates the right to inviolability of residence. However, in the Judgment, two members have dissenting opinions that Ford's right to inviolability of residence was not violated in terms of the concrete event.
It is seen that the Court has signed a controversial decision in terms of on-site inspection authorization with the judgment. While the implementation principles caused by the changes made to the Guidelines on the Inspection of Digital Data in On-Site Inspections are currently being discussed, the discussions on on-site inspections will be moved to a different dimension with the judgment of the Court. As a matter of fact, the outcome of the on-site inspections to be carried out and the ongoing processes related to the previous on-site inspections remain uncertain until a regulation is made on the subject. As a result, it would not be wrong to say that the most important agenda of the Competition Authority and other competition law practitioners in the coming days will be the use of on-site inspection authority.