The Competition Board, which has various tools to supervise the market in order to create, maintain and sustain a healthy competitive environment, frequently uses on-site inspections. Article 15 of the Law No. 4054 on the Protection of Competition (“Law”) titled “On-Site Inspection” regulates this issue.
The Competition Board’s authority to conduct on-site examinations includes the authority to examine and evaluate in detail the competition-related activities of a particular business or sector in order to identify situations where competition may be prevented, distorted or restricted.
In 2020, significant amendments to the Law expanded the scope of the on-site inspection and allowed for the on-site inspection of all kinds of data and documents of undertakings and/or associations of undertakings kept in electronic media and information systems, and/or the examination of physical copies of such data and documents. When the current practices of the Competition Authority are examined, it is seen that competition violations are increasingly detected through e-mail and Whatsapp correspondence of undertakings.
When exercising its authority to conduct on-site examinations, the Board exercises this authority in accordance with the provisions of the “Guidelines on the Examination of Digital Data in On-Site Examinations” published by the Competition Authority in 2020. With the June 24, 2020 amendment to the Law, we see that the importance of this issue has increased and the Board’s decisions in this direction and the digital data deleted by the undertakings during the on-site examination resulted in administrative sanctions.
Sanctions of Prevention of On-Site Inspection under the Competition Law
Preventing or obstructing on-site inspection, providing incomplete, false or misleading information or documents, or failing to provide information or documents within the specified period or not at all, are subject to administrative fines under Articles 16 and 17 of the Law.
Pursuant to Article 16 of the Law, the Board may impose an administrative fine of five per thousand (0.5%) of the relevant undertaking’s gross revenues on the undertaking subject to inspection, in the event that the on-site inspection is prevented or made difficult. If this cannot be calculated, an administrative fine may be imposed at the rate of five per thousand (0.5%) of the revenues generated at the end of the fiscal year closest to the date of the decision and to be determined by the Board.
Pursuant to Article 17 of the Law, in addition to the fines set forth in Article 16, the Board may impose an administrative fine at the rate of five per ten thousand of the annual gross revenues of the undertaking at the end of the fiscal year closest to the date of the decision, to be determined by the Board, for each day that the on-site inspection is prevented or made difficult.
In the event that an on-site inspection is prevented or likely to be prevented, an on-site inspection may be conducted with the decision of a criminal judge of peace.
Consequences of the Prevention of On-Site Inspection within the Scope of Recent Board Decisions
Mosas decision dated 21.06.2018 and numbered 18-20/356-176
During the on-site investigation, the internet connection was interrupted twice between 10:30 and 12:30; subsequently, at around 12:30, it was noticed by one of the rapporteurs on duty that the e-mails being examined on (…..)’s computer had been deleted
When the official of the undertaking was asked about the situation, another rapporteur saw that the official was corresponding about the undertaking in an online correspondence group titled “Mosaş” and asked for the official’s phone number; after the official provided the phone number, the correspondence was opened from the official’s work computer and examined.
From the examination of the correspondence, it was seen that the professional personnel conducting the on-site inspection were photographed and shared in the group, and that there were expressions such as “cut the internet so that they cannot enter”, “let’s break the modem”, “delete the e-mails”, whereupon a screenshot of the existing correspondence was taken by the professional personnel in charge. In parallel to this, the on-site inspection was made difficult and obstructed by power cuts, failure to provide internet connection, removal of the computer cases from the facility and similar actions. Whatsapp correspondence was mentioned and used in the Board decision as proof of the actions of Mosaş officials to prevent the on-site inspection.
Askaynak Decision dated 26.12.2019 and numbered 19-46/793-346
On-site examinations were initially started through the corporate e-mails of the undertakings, and upon the correspondence obtained from the corporate e-mail account, which was understood to have been transmitted from the personal e-mail account of the general manager of the competitor undertaking, and which was highly likely to be about the organization of anti-competitive associations, it was understood that the officials used their personal e-mail accounts for business purposes.
The on-site investigation team determined that there were 96 (ninety-six) unread e-mails at 14.12 hours, which was the first time the e-mail account was accessed, and 73 (seventy-three) unread e-mails at 15.35 hours, which was the time when the examination was allowed by (…..). The experts stated that not granting the access permission in question could mean obstruction of the on-site inspection and could result in an administrative fine.
The General Manager, on the other hand, did not grant access for a while and when he finally did, it was seen by the experts that some e-mails were deleted and could not be retrieved. As a result, the on-site inspection of Kaynak Tekniği San. ve Tic. A.Ş. was imposed an administrative fine of five per thousand of its gross income for 2018 due to the prevention of on-site inspection.
Unilever Decision and Litigation Process
Within the scope of their audit at Unilever, the Agency experts wanted to conduct a remote access inspection of some employees with the eDiscovery program. Since the eDiscovery inspection authorization was held by an official working abroad, communication was established at 11:00. At 12:30, it was stated that the review authorization was given, but then it was stated that a higher level authorization was needed from global. The authorities abroad stated that the review could only be carried out on Turkish data and that time was needed to sort it out, and they were only able to grant access at 17:45. The Board characterized this period of time as obstruction and imposed an administrative fine of 29.609.872,46,-TL against the plaintiff company pursuant to Article 16, paragraph 1/d of Law No. 4054. Subsequently, Unilever San. Ve Tic. A.Ş. filed a lawsuit for the annulment of the decision dated 07/11/2019 and numbered 584-250 regarding the imposition of this administrative fine. The case was heard by the Ankara Regional Administrative Court 8th Administrative Case Department with the decision number 2021/1523 and 2022/222 Decision number.
In the decision of the 13th Chamber of the Council of State dated 22/03/2016 and numbered E: 2011/2660, K:2016/775 “in the event that the rapporteurs assigned by the plaintiff company to conduct an on-site inspection were able to start the on-site inspection 40 minutes after their arrival, it was decided that the on-site inspection was prevented by delay in the event, taking into account that this time would be sufficient to realize the possibility of removing the materials that are likely to be evidence of the incident subject to the investigation from the building. In the decision of the Ankara Regional Administrative Court, 8th Administrative Case Chamber, dated 2022, which was referred to in this decision, it was ruled that a delay of 6 hours and 45 minutes was undoubtedly an obstruction. The decision clearly emphasizes the importance of the time element in such an examination.
Conclusion
When we take a look at the recent decisions on the prevention of on-site inspection, we observe that a common trend in these decisions is that e-mail or WhatsApp correspondence is deleted by the employees of the undertakings and the Authority imposes a fine based on the “Prevention of On-Site Inspection Authorization” only due to this deletion action, even if the deleted correspondence content cannot be accessed. Moreover, most of the deleted digital correspondence is detected through forensic methods or devices of the persons on the other side of the correspondence and constitutes evidence against the undertakings. . In this respect, it is of utmost importance that public institutions, undertakings and associations of undertakings show due diligence during the examinations, investigations and inquiries to be conducted by the Competition Board, information requests and on-site examinations, and avoid situations such as providing incomplete, misleading or incorrect information, not providing information at all, and obstructing on-site examinations.
Gülben Aksandık, Attorney at Law
