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The On-Site Inspection Authority: An Examination After the Constitutional Court Decision



The discretionary nature of on-site inspection authority wielded by Turkish governmental authorities has been facing criticism, which stems from concerns that inspections may lack clear guidelines or oversight, leading to inconsistent and arbitrary applications. The Turkish Constitutional Court’s decision with no. 2019/40991 (“Decision”), concerning the legality of the Turkish Competition Authority’s on-site inspection authority, has set a precedent in this regard by concluding that the on-site inspections are against the inviolability of the domicile, which is a fundamental right regulated under the Constitution of the Republic of Turkey (“Constitution”).

 

To provide a general background, Article 15 of the Law No. 4054 on the Protection of Competition (“Law No. 4054”) authorizes the Competition Board (“Board”) to perform inspections at undertakings and associations of undertakings in cases it deems necessary, including on-site inspections.

 

Based on an individual application made by an undertaking, claiming the violation of its rights due to the Board’s on-site inspection, the Constitutional Court examined the case with respect to the notion of domicile. Accordingly, the Constitutional Court evaluated whether workplaces are considered within the scope of domiciles and stated that places such as personal study rooms or offices are excluded from the publicity of the workplace and must be considered within the scope of domicile in terms of privacy and protection. Whereas public places in a workplace where everyone can enter freely, such as study halls or conference rooms must not.

 

Within this framework, the Constitutional Court emphasized that the Constitution underlines that no domicile may be entered or searched, or the property seized therein, without:

 

  • a decision duly given by a judge on the grounds of national security, public order, prevention of crime, protection of public health and public morals, or protection of the rights and freedoms of others, or

  • a written order of an agency authorized by law in cases where delay is prejudicial, again on the above-mentioned grounds. 

 

In this regard, the Constitutional Court concluded that although the Law No. 4054 grants the authority to conduct on-site inspections to the Board, such provision is not in line with the restrictions of the inviolability of the domicile regulated under the Constitution.

 

It should be noted that the Constitutional Court’s Decision does not amend Article 15 of the Law No. 4054 and currently, it only concerns the parties of the case. However, the ruling also includes notifying the Grand National Assembly of Turkey (“Assembly”) for the solution of this structural problem. The Assembly has yet to make any amendments to the Law No. 4054.

 

In Turkey, the Board is not the sole authority which exercises its on-site inspections authority under the provisions of relevant laws. For instance, the Information Technologies and Communication Authority (“ITCA”) is also granted with a similar authority under the Article 59/1 of the Law No. 5809 on Electronic Communications, which states that the ITCA is authorized to carry out or have third parties carry out on-site examination and inspections, when it deems necessary. Moreover, the law enforcement is obliged to provide assistance to ITCA during on-site inspections.

 

Another authority that is granted with on-site inspection authority is the Personal Data Protection Authority. Subsequently, Article 15/3 of the Law No. 6698 on Personal Data Protection foresees that data controllers are obliged to enable on-site inspections of the Personal Data Protection Authority, when necessary.


Considering the Decision of the Constitutional Court and its notification to the Assembly, arbitrary operations of on-site inspections are expected to change in a legitimate and appropriate manner.


Authors: Hatice Ekici Tağa, Sümeyye Uçar, Begüm Alara Şahinkaya, Göksu Tuğrul

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