Competition and Antitrust

Author: Aslı Su Çoruk

Introduction

The right to make on-site inspections is one of the Competition Board’s (“Board”) most important tools for revealing whether Law No. 4054 on the Protection of Competition (“Law No. 4054”) has been violated. The effective use of this authority is quite important in terms of obtaining fruitful results from their investigations. Especially with the publication of the Guidelines on the Examination of Digital Data in On-Site Inspections (“On-Site Inspection Guidelines”), the situations that hinder and complicate the on-site inspection as a result of the deletion of WhatsApp correspondence on mobile devices have increased and the number of decisions where the Board has imposed administrative fines have also significantly risen. The Board’s approach towards deleting WhatsApp correspondence during on-site inspections continues to be shaped by its decisions. Specifically, the A101 decision discussed in this article is noteworthy as it demonstrates the current approach of the Board on the subject, as well as the dissenting opinion of some Board members.

During an investigation carried out by the Board into some undertakings operating as producers, suppliers and retailers in the FMCG sector, an on-site inspection was carried out at Yeni Mağazacılık A.Ş. (“A101”) on 08.12.2021. The computers and mobile devices of various employees present at the company’s premises were subject to examination. The most interesting part of the A101 decision is that the Board evaluated the actions taken by three different employees during the on-site inspection to determine if they constituted a “hindering or complication” for the on-site inspection.

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