The rationale of the decision of the Turkish Competition Board (“Board”) dated 23 June 2022 and numbered 22-28/464-187, which has been decided with regards to the on-site inspection carried out within the scope of the investigation proceeded against Yeni Mağazacılık A.Ş. (“A101), was published on the Turkish Competition Authority’s website on 26 September 2022. The Decision constitutes a landmark precedent regarding the hot topic of prevention of on-site inspection which the Board frequently evaluates in recent times.
In the assessment provided in the Decision, it has been stated that the employees were suspected of deleting the data in their phones after the on-site inspection began, however, it also has been stated that no log record had been found showing that the WhatsApp application was deleted after the on-site inspection began. Besides, it has been underlined that the statement of one employee acknowledges the deletion of private messages from the business phone while it has not been detected whether the messages were deleted before or after the on-site inspection began. Accordingly, no fine was imposed on A101.
On the other hand, a very detailed opposition view text was submitted by two Board members regarding the Decision. In summary, the opposition view text states that the file includes concrete evidence showing the deletion of the WhatsApp during the on-site inspection, “the principle of dubio pro re” cannot be applied to the file and established precedents of the Board require acceptance of the prevention of on-site inspection by A101.
The Decision constitutes a landmark precedent in terms of the files examining the behavior of prevention of on-site inspection. Indeed, the Board was using its discretion to the detriment of the undertakings in cases where whether the data was deleted during the on-site inspection cannot be determined. However, we think that discussions regarding the topic will continue in the following times since two board members submitted an opposition view and the precedents of the Board are not uniform yet.