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TCC: “TCA CAN NOT CARRY OUT ONSITE INVESTIGATION WITHOUT A COURT ORDER."



The decision of the Turkish Constitutional Court (“TCC) dated 23.03.2023 and issued regarding application numbered 2019/40991 (“Decision”) has been published in the Official Gazette dated 20.06.2020. The application subject to the Decision was filed by Ford Otomotiv Sanayi Anonim Şirketi ("Ford Automotive"), alleging that certain powers exercised by the Turkish Competition Authority (“TCA”), the fines imposed by the TCA and some of its practices violated constitutionally protected rights.


The relevant Decision brings about important evaluations, particularly regarding the TCA’s power of on-site inspections, which has been one of the most debated topics in competition law in recent years. One of the allegations raised in Ford Automotive’s application is that on-site inspections conducted without a court order violate the right to immunity of residence.


The TCC, in its evaluation regarding this claim, stated that places where companies carry out their activities such as workplaces, headquarters, and branches are also considered as residences within the scope of Article 21 of the Turkish Constitution. Accordingly, in the Decision, it was concluded by majority vote that Article 15 of Law No. 4054 on the Protection of Competition (“Law No. 4054), which regulates the TCA's power to carry out on-site inspections, does not require a judicial decision for competition experts to conduct on-site inspections and violates Article 21 of the Turkish Constitution. However, Article 15 of Law No. 4054 has not been annulled; instead, it has been decided to send the Decision to the Grand National Assembly of Turkey for a review of the relevant legal provision.


Ford Automotive's other claim is that the right to a trial within a reasonable time was violated due to the prolonged judicial process. In the evaluation made by the TCC regarding this claim, it has been stated that the administrative fines imposed by the Turkish Competition Board ("Board") have the nature of criminal charges and fall within the scope of the right to a fair trial. In this context, the Constitutional Court (AYM) has decided that the duration of 9 years, 10 months, and 26 days between the start of the preliminary investigation of TCA’s against Ford Automotive and the conclusion of the administrative judicial process following Ford Automotive's objections violated the right to a trial within a reasonable time.


On the other hand, Ford Automotive has claimed that scope the of Law No. 4054 covers the markets of goods and services within the Republic of Turkey and stated that taking export revenues into account for the determination of the fine and increasing the penalty by half by considering three separate actions as a single ongoing action violates the right to property. In this context, the TCC based its evaluations on the legitimate aim, proportionality, suitability, necessity, and proportionality principles included in the Turkish Constitution and decided that the relevant practices do not constitute a violation of the right to property. Besides, Ford Automotive's claim that the non-inclusion of export revenues of undertakings, which are the other parties of the investigation, in the determination of penalties constitutes a violation of the non-discrimination principle has not been accepted by the TCC on the grounds that these undertakings did not engage in export activities.


In conclusion, we believe that this TCC Decision may be brought to the agenda within the scope of the files already examined by the Board and the courts regarding the conduct of preventing on-site examinations. It is also expected that the TCA will need a judge's decision for future on-site examinations and that legislative amendments will be made in line with the TCC's Decision.

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