Author: Ecem Süsoy Uygun
Introduction
In these days when the Competition Board (“Board”) frequently imposes administrative fines for preventing on-site inspections and both the Competition Authority (“Authority”) and undertakings take legal and technical measures regarding on-site inspections, a striking development has occurred. In its decision dated 23.03.2023 and numbered 2019/40991 (“Constitutional Court Decision” or “Decision”) published in the Official Gazette dated 20.06.2023[1], the Constitutional Court (“CC”) decided that the on-site examinations carried out by the Authority's experts without a judge's decision violate the right to immunity of domicile under Article 21 of the Constitution, considering workplaces as " domicile". Although the scope of this Decision, which opened the doors to a new era in competition law practice, is not limited to the applicant's claims regarding the violation of immunity of domicile, this article focuses on the Constitutional Court's assessment in the Decision that the Authority's on-site inspection competence violates the right to immunity of domicile.
The Subject of the Application to the CC
It is observed that the applicant, which operates in the automotive market, applied to the administrative judicial process for the cancellation of the administrative fine imposed by the Board on the grounds of violation of Article 4 of the Law No. 4054 on the Protection of Competition (“Law No. 4054”) upon the preliminary investigation and subsequent investigation conducted by the Board against the undertakings operating in the automotive sector.
The subject matter of the application is related to the allegations that the right to immunity of domicile was violated due to the unlawfulness of the inspection at the workplace, the right to property due to the imposition of an administrative fine, the prohibition of discrimination in connection with the right to property due to the fact that the export turnover of his applicant was taken into account although the export turnover of other undertakings was not in determining the amount of the fine, the principle of not being retried and punished due to the investigation of the same act for the second time, the right to be tried within a reasonable time due to the long duration of the trial, and the right of access to the court due to the abolition of the decision correction stage by the law that entered into force while the trial was in progress.
