The Turkish Competition Authority ("the TCA") has the authority to use certain investigative powers to conduct inspections, inquiries and investigations, on request or on its own initiative, into practices and legal transactions prohibited by Law on the Protection of Competition ("the Competition Law").
Information Gathering The TCA's Information Gathering Powers All public institutions and organizations, companies, persons and trade associations are required to provide the information requested by the Board. If they fail to duly provide the requested information, they may be (separately) subject to turnover-based fixed administrative monetary fines of 0.1% of their annual gross revenues (min. TL 47,409 or approx. EUR 3,0766)1 and/or daily-based periodic administrative monetary fines of 0.05% of their annual gross revenues for each day the information has not been provided.
Do the companies located outside the jurisdiction have a duty to reply to the TCA's information requests? Yes. Turkey is one of the 'effects theory' jurisdictions. Therefore, companies located outside of Turkey but producing an impact on Turkish markets should reply to the TCA's information requests, even if they have no physical presence in Turkey.
On-the spot-investigations Can the TCA conduct on-the-spot investigation (dawn raid) at the companies' or company employees' premises without notice? Yes. It is possible for the TCA to conduct on-site inspections (dawn raids) at the companies' and trade associations' premises without prior notice. The TCA officials need to possess an authorization certificate showing the subject-matter and purpose of the inspection.
How does the Board collect relevant and necessary documents (e.g. seizure of hard copies / electronic mail) at the companies' premises?

The TCA can perform on-the-spot examinations at companies' and trade associations' premises if necessary. It is entitled to:

  1. examine the books, paperwork and documents of the company/trade association kept on physical or electronic media and in information systems, and take copies and physical samples thereof,
  2. request the company/trade association to provide written or verbal explanations on particular issues,
  3. perform examinations on any asset of the company/trade association (such as the company's cars, cupboards, cases) and examine full computer records, including deleted items.

Additionally, as per the Guidelines on Examination of Digital Data during On-site Inspections ("Guidelines"), the TCA case handlers are entitled to conduct their on-site examination on the relevant undertaking`s IT systems such as servers, desktop or laptop computers and portable devices, as well as all data storage apparatus and mechanisms, such as CDs, DVDs, USB sticks, external hard disks, backup records and cloud services. Additionally, per the Guidelines, the TCA may utilize digital forensics software or hardware during their on-site inspection, to search, retrieve and duplicate the digital documents or data, as well as recover any deletions.

Furthermore, as per the Guidelines , in terms of the examination of portable devices (e.g., mobile phones, tablets etc.), the case handlers are granted the discretion to decide whether the relevant device should be subject to the review within the scope of the on-site inspection, after a quick browse to determine whether the subject portable device contains any digital data pertaining to the relevant undertaking. The portable devices which are allocated entirely for personal use, cannot be brought under the scope of an on-site inspection. That being said, personal portable devices which also include digital data pertaining to the relevant undertaking, would still be subject to the review of the case handlers through the use of digital forensic tools.

Per the Guidelines, the undertaking under scrutiny is obliged to prevent any interferences to the data itself or the medium wherein it is stored, as well as to fully and actively assist the case handlers where needed with regard to the IT systems, such as by (i) providing the case handlers with information regarding the IT software and hardware, (ii) authorizing the case handlers as system admins, (iii) providing remote access, (iv) isolating the computers and servers from the network, (v) limiting user access to corporate accounts and (vi) restoring backed-up/stored business data.

Furthermore the Guidelines also introduce a brand-new procedure, which grants the TCA the discretion to continue its inspection of the digital documents or data, in the computer forensics laboratory of the TCA, if deemed necessary. Having said that, the Guidelines provide that the inspection of the digital data contained in mobile phones shall be completed at undertaking's premises, in any event.

Absent the company's/trade association's consent, the TCA has no competence for voice recording, wiretapping or secret investigator.
Do the TCA's measures require a court warrant? In principle, no. The Competition Law provides vast authorities to the TCA on dawn raids and information/document requests. The Board is obliged to obtain a judicial authorization, only if the company/trade association refuses to grant access to the TCA to its premises. Other than that, the TCA does not need to obtain a court warrant to use its investigative powers.
What are the consequences of refusing the TCA officials' access to the premises? Refusal to grant the TCA's case handlers access to the company/trade association premises would lead to the imposition of administrative monetary fines. The administrative monetary fine is fixed at 0.1% of the annual gross revenues of the company/trade association in the financial year preceding the date of the decision (if this is not calculable, the turnover generated in the financial year nearest to the date of the decision will be taken into account). The minimum administrative monetary fine is 47,409 or approx. EUR3,076). Depending on specific circumstances, the Board may also impose a daily administrative monetary fine, which would be calculated at 0.05% of the annual gross revenue of the company/trade association for each day the company/trade association would not let the TCA officials in the premises.
Burden of Proof What standard of proof must the TCA satisfy?

Turkish competition law enforcement is marked by very low standards of proof. An antitrust violation requires proof that there was such violation or, in the case of multilateral discussions or cooperation, the particular company/trade association was a participant. With a broadening interpretation of the statutes, and especially of the 'object or effect of which...' element, the TCA has established a very low standard of proof concerning cartel activity. The standard of proof is even lower as far as concerted practices are concerned; in practice, if parallel behavior is established, a concerted practice might readily be inferred and the defendants might be required to prove that the parallel behavior is not the result of a concerted practice. "The presumption of concerted practice" enables the Board to engage in an enforcement of Article 4 in cases where price changes in the market, supply/demand equilibrium or fields of activity of enterprises bear a resemblance to those in the markets where competition is obstructed, disrupted or restricted. Turkish antitrust precedents recognize that "conscious parallelism" is rebuttable evidence of forbidden behavior and constitutes sufficient grounds to impose administrative monetary fines on the companies concerned.

Illegally-obtained evidence is inadmissible (Mey İçki, 17.11.2011; 11-57/1476-532). The body of evidence is assessed as a whole so each piece of evidence may not contain each factor such as subject, period or parties. To the extent the evidence is coherent in itself, the existence of a violation can be inferred (Bankalar, 08.03.2013; 13-13/198-100).
Legal Privilege How does the TCA deal with the attorney-client privilege?

Attorney-client-privilege (legal privilege) constitutes an exception for discoverability. Attorney-client-privilege prevents the TCA from examining certain written communications between the company/trade association and its outside counsel (s). However, legal privilege does not prevent the client from disclosing the written communications with its attorney(s), if the client considers that it is in its interest to do so.

The Guidelines emphasize that the attorney-client privilege shall be respected when an on-site inspection is conducted. Per the Guidelines, in order to benefit from the attorney-client privilege, two cumulative conditions shall need to be met, which are: (i) the correspondence shall be between the undertaking and an independent/outside legal counsel, who has no employment relationship with the relevant undertaking and (ii) the correspondence shall be made with the purpose of exercising the undertaking's right to defense.

The Board indicated in Huawei (14.11.2019, 19-40/670-288) and Çiçeksepeti (2.7.2020, 20-32/405-186) that correspondence between an undertaking and its in-house counsel will not benefit from attorney-client privilege.
Self-Incrimination How does the TCA handle privilege against self-incrimination? Article 38 of the Turkish Constitution provides that 'no one shall be compelled to make a statement that would incriminate themselves or their legal next of kin or to present such incriminating evidence'. It is accepted that the Board has to respect privilege against self-incrimination while exercising its powers.

Footnote:

1. Amount in EUR is converted at the exchange rate EUR 1= TL 15.410 in accordance with the applicable Turkish Central Bank current rate as at the time of writing.