Obstruction of Dawn Raids: An Important Council of State Ruling on Data Deletion from Personal Devices
The scope of the Turkish Competition Authority’s (“TCA”) examination of employees’ mobile devices during dawn raids, and the circumstances in which data deletion from such devices may be regarded as the obstruction or hindrance of a dawn raid, have become increasingly prominent issues in Turkish competition law practice in recent years. The ruling of the 13th Chamber of the Council of State dated 13 January 2026, Case No. 2023/2772 and Decision No. 2026/36, concerning Sahibinden, contains important findings on the limits of the TCA’s dawn raid powers, particularly with respect to data stored on personal devices.
Background to the Dispute and the Competition Board’s Decision
As part of an investigation conducted pursuant to the Turkish Competition Board’s (“Board”) decision dated 1 April 2021 concerning gentlemen’s agreements in the labor market, a dawn raid was carried out at Sahibinden Bilgi Teknolojileri Pazarlama ve Ticaret A.Ş. (“Sahibinden”) on 9 April 2021.
During the dawn raid, it was established that correspondence in two WhatsApp groups named “HRBP” and “HRBP’lerle”, stored on the personal mobile device of one of the company’s employees, had been deleted. According to the technical assessment obtained by the TCA, the relevant correspondence had been deleted after the commencement of the dawn raid.
The Board subsequently concluded that the deletion of data during the dawn raid had hindered the case handlers’ access to potential evidence and findings. Accordingly, by its decision dated 27 May 2021 and numbered 21-27/354-174, the Board imposed an administrative fine of TRY 4,807,073 on Sahibinden pursuant to Article 16(1)(d) of Law No. 4054 on the Protection of Competition (“Law No. 4054”).
The Administrative Court’s Annulment Decision and the Council of State’s Assessment
Sahibinden challenged the administrative fine imposed by the Board before the administrative courts. The first-instance court annulled the Board’s decision, taking into account that the company had instructed its employees not to delete data during the dawn raid, that the deleted correspondence could be accessed through the phones of other employees, that the device from which the data had been deleted was the employee’s personal phone, and that the correspondence in question was unrelated to the company’s business. The appeal against this judgment was also dismissed.
The dispute was subsequently brought before the 13th Chamber of the Council of State following the TCA’s cassation appeal.
In its assessment, the Council of State underlined that the Board’s dawn raid powers do not permit the unrestricted examination of any and all information or documents.
In this context, the Council of State referred to the rules applicable to portable communication devices under the Guidelines on the Examination of Digital Data during On-Site Inspections (“Guidelines”). Under the Guidelines, portable devices such as mobile phones and tablets must first be subject to a quick review in order to determine whether they contain digital data belonging to the undertaking. Devices found to be used exclusively for personal purposes should not be subject to further examination. Where a personal device is found to contain data belonging to the undertaking, the examination must be limited to those parts of the device containing such data.
The Council of State further noted that the examination of personal devices also engages the right to privacy and, accordingly, emphasised the importance of the TCA establishing why the data selected for examination following the quick review should be regarded as data belonging to the undertaking.
In the case at hand, although the WhatsApp groups containing the deleted correspondence could be accessed through another employee’s device, it had not been concretely established that those groups contained data belonging to the undertaking. On the contrary, the correspondence available in the case file was considered to be personal in nature rather than relating to the undertaking.
Against this background, the Council of State concluded that neither the dawn raid minutes, the technical assessment nor the Board’s decision had concretely established that the personal device and the WhatsApp groups examined contained digital data belonging to the undertaking. The Council of State therefore found the Board’s decision unlawful and upheld the annulment of the administrative fine, while substituting the reasoning underlying the annulment judgment.
Significance of the Ruling for Competition Law Practice
The ruling of the 13th Chamber of the Council of State places an important limit on the Board’s strict approach to data deletion from employees’ personal devices. While the ruling does not treat personal devices as categorically falling outside the scope of dawn raids, it indicates that the data examined on such devices must be concretely established as belonging to the undertaking.
In the Samsung decision we previously discussed, the Board decided not to impose an administrative fine even though certain digital data were no longer available on employees’ devices after the commencement of the dawn raid, taking into account that the relevant correspondence could still be accessed through other employees’ devices and that the correspondence did not contain any findings related to the subject matter of the investigation. In our previous article, we noted that it was still too early to conclude that the approach adopted in the Samsung decision signalled a paradigm shift in the Board’s decisional practice.
Although the Council of State’s Sahibinden ruling is based on a different legal assessment, it is nevertheless noteworthy in demonstrating that disputes concerning the deletion of digital data require consideration not only of whether a deletion occurred, but also of the nature of the deleted data and whether such data fall within the scope of the TCA’s dawn raid powers.
Our article discussing the Board’s Samsung decision is available via this link.
Conclusion
The 13th Chamber of the Council of State’s Sahibinden ruling constitutes an important precedent regarding the scope of the TCA’s dawn raid powers over digital data and the manner in which personal devices may be examined. According to the ruling, for data stored on personal devices to fall within the scope of the TCA’s dawn raid powers, it must be established that such data belong to the undertaking. The same consideration must also be assessed in light of the specific circumstances of each case when imposing sanctions for obstructing or hindering a dawn raid.
In this respect, the ruling is likely to remain significant for both the Board’s decisional practice and administrative case law in delineating the limits of the examination of data stored on personal devices, while preserving the TCA’s ability to conduct effective dawn raids.
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