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On-site Inspection by The Competition Authority Violates the Inviolability of the Domicile

Constitutional Court Decision Dated 23.03.2023 and Application No. 2019/40991




Article 15 of Act No. 4054 on the Protection of Competition stipulates that the Competition Board may perform examinations at undertakings and associations of undertakings in cases it deems necessary. During the on-site inspection, undertakings have obligations not to complicate the inspection, to deliver the information and documents requested by the experts of the Board, and to assist in the examination.


In the decision of the Constitutional Court dated 23.03.2023 and numbered 2019/40991, the application made by Ford Otomotiv Sanayi A.Ş. (“Applicant”) on the violation of the right to inviolability of the domicile due to the unlawfulness of the examination conducted by the Competition Board was examined.


It was stated by the applicant that the possibility of intervention on the inviolability of the domicile in accordance with the 21st article of the Constitution depends on the existence of a judge's decision; it was suggested that the examination carried out at the workplace did not include sufficient legal guarantees.


As a result of the examination conducted by the Constitutional Court, it has been ruled that the inviolability of the domicile was violated.


Is the Evaluation of an Inspection Conducted at the Workplace Possible Within the Framework of the Right to Inviolability of Domicile?


Pursuant to Article 21 of the Constitution, no person's domicile shall be entered, no search shall be conducted in their domicile, and no items therein shall be seized without a judicial order duly issued.


Given the prevailing understanding that the notion of domicile primarily encompasses the private abode where an individual conducts their personal life, there exists ambiguity as to whether an investigation conducted in a place of business can be evaluated within the framework of the right to inviolability of domicile.


The Constitutional Court, considering the powers enumerated in Article 15 of Law No. 4054, found that it was understood that the on-site inspection was carried out at the headquarters, branches, and facilities where the undertaking carries out its administrative affairs. Nevertheless, it has been concluded that there is no hesitation regarding areas such as sections where management affairs take place and individual workspaces, which are not freely accessible to all, being classified as domicile.


Therefore, it has been adjudicated that those on-site inspections carried out at the place of business where the undertaking conducts its commercial activities must be evaluated within the ambit of the right to inviolability of domicile.


Does the On-Site Inspection Conducted by the Competition Board Violate the Right to Inviolability of Domicile?


As an exception to the inviolability of domicile rights regulated in Article 21 of the Constitution, allowing for a written order issued by an authorized body designated by law, in cases where delay would be detrimental, instead of a direct judicial order. Nevertheless, even in this exceptional circumstance, it is obligatory to submit the decision of the competent authority for approval by the relevant judge within 24 hours.


However, the authority granted to the Competition Board under Law No. 4054 enables on-site inspections to be conducted at undertakings' places of business without requiring any judicial order. In other words, it is envisaged that the Competition Board may conduct on-site examinations without a judge's decision, without being limited to cases where delay is inconvenient.


The Constitutional Court, considering the reasons presented above and evaluating that there is no obligation for the Competition Board to submit the written on-site inspection order to the competent judge for approval within 24 hours, has concluded that the on-site inspection activity constitutes a violation of the right to inviolability of domicile.


Conclusion


The violation decision of the Constitutional Court regarding the on-site examination is of great importance in terms of Competition Law practice.


Following its publication in the Official Gazette, and upon its attainment of public availability, we think that any on-site inspections conducted by the Competition Board should be carried out considering the infringement decision. Since the decision orders the Grand National Assembly of Turkey to be notified of the solution of the structural problem, it is envisaged that the legislative body will bring Article 15 of Law No. 4054 into conformity with the Constitution without delay.


Av. Deniz Karaduman


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