I. INTRODUCTION
In the current economy, where digitalization has permeated every aspect of the business world, data has become one of the most valuable assets for undertakings. Critical information such as commercial strategies, customer data, communication records, and market analyses is now predominantly stored and processed on digital platforms. This situation has fundamentally altered the processes by which competition authorities detect agreements, decisions, and concerted practices that distort competition in the market. Traditional reviews of physical documents are increasingly being replaced by the examination of digital data stored on company servers, cloud systems, and even employees’ mobile devices.
This digital transformation has also reshaped the scope and method of application of the inspection powers held by competition authorities. Article 15 of the Act No. 4054 grants the Competition Board the authority to conduct inspections on the information systems and digital data of undertakings. However, the exercise of this power necessitates establishing a delicate balance between the undertakings’ rights to the privacy of private life and the protection of trade secrets on the one hand, and the authority’s need to collect evidence on the other. In particular, the classification of actions such as “data deletion” during an inspection as a direct attempt to obstruct an investigation constitutes one of the most significant legal debates in this field.
The purpose of this legal brief is to legally analyze the act of “data deletion” encountered by the Competition Board during on-site inspections, to evaluate the concept of obstruction of inspection in light of the relevant legislation, the Decision concerning the Company, and current issues, and to provide a comparative perspective with international practices.
II. ON-SITE INSPECTION AND EVIDENCE GATHERING REGIME
The effective enforcement of competition law depends on competition authorities having access to the necessary evidence to detect violations. In this context, “on-site inspections” (dawn raids) are one of the most powerful and effective supervisory tools available to competition authorities. Pursuant to Article 15 of Law No. 4054, the Competition Board has the authority to conduct inspections at the premises, land, and vehicles of undertakings and associations of undertakings in order to determine whether Articles 4, 6, and 7 of Law No. 4054 have been violated. This inspection authority covers not only physical documents but also data and documents in the enterprises’ electronic environments and information systems.
Competition Authority experts may examine the undertaking’s books, physical and electronic mail, and data on any corporate and personal-looking (but used for business purposes) devices (computers, mobile phones, tablets, etc.) during these investigations and may take copies of them. The fundamental purpose of this broad authority is to obtain evidence of the undertaking’s anti-competitive actions directly from the source before it is destroyed or concealed. A similar regime exists internationally. For instance, the European Commission also has unprecedentedly broad on-site inspection powers under Regulation 1/2003 and effectively uses these powers on digital evidence.
The regime in Türkiye has been increasingly adapting to the challenges posed by digitalization, particularly in recent years. The Competition Authority actively uses forensic IT instruments in its investigations and attempts to access even deleted data. This makes it even more important for undertakings to cooperate fully during the investigation process. Any obstruction or hindrance to the investigation is punishable by a monetary fine of five per thousand (0.5%) of the undertaking’s turnover at the end of the previous fiscal year, pursuant to Article 16 of Law No. 4054. This penalty is entirely independent of any potential penalty related to the substance of the investigation.
III. THE LEGAL NATURE OF THE ACT OF DATA DELETION
In the context of competition law, the act of data deletion is considered one of the most explicit actions aimed at frustrating the purpose of an on-site inspection. This act does not merely signify the elimination of potential evidence with the press of a button; it also demonstrates a clear intent to actively obstruct the competition authority from fulfilling its legal duties. Legally, this act constitutes a direct violation of the power of inspection granted under Article 15 of the Law No. 4054 and is a procedural infringement falling within the scope of “obstruction or hindrance of an inspection” as regulated in Article 16 of the Law No. 4054. The Competition Board considers such actions as a deliberate attempt to conceal evidence and imposes significant deterrent fines.
In international practice, the destruction or concealment of evidence is also considered obstruction of justice and is subject to severe sanctions. For instance, the European Commission has imposed high fines on companies that have broken the seal of a sealed room during an on-site inspection or have delayed access to requested documents. The act of data deletion is a more sophisticated, yet in terms of its consequences, a more perilous form of obstruction than such physical hindrances.
In Türkiye, there are other actions considered obstructive to an inspection, similar to the act of data deletion. These include delaying the access of Competition Board experts to a specific room or server, providing false or misleading information, refusing to share passwords, or employees communicating amongst themselves to destroy evidence during the inspection.
As seen in the Decision, the deletion of work-related correspondence, particularly on instant messaging applications such as WhatsApp, has been directly classified by the Competition Board as an obstruction of the inspection. This situation clearly establishes that work-related data on personal devices are also within the scope of the inspection and that such data must be preserved.
IV. CASE LAW REVIEW
The Decision of the Competition Board represents a landmark ruling concerning the sanctions imposed for the act of deleting digital data after on-site inspection procedures have commenced. According to the statement of the Competition Authority, it is stated that an act of data deletion by an executive was detected immediately after the inspection began during the inspection initiated at the premises of the Company. The Competition Authority experts, in their statement, also noted that they promptly identified this attempt using state-of-the-art devices and clarified that the inspection did not encompass data of a personal or private nature.
The Competition Board has characterized this act as a deliberate action intended to obstruct the exercise of its inspection powers under Article 15 of Act No. 4054. According to the Board, the deletion of data from a business-related platform by an employee after the inspection has started constitutes a clear violation of the company’s obligation to cooperate with the investigation. It was emphasized that the company is responsible for such actions of its employees and is required to take necessary precautions. The Competition Board stated that the act of data deletion amounts to the spoliation of potential evidence that could affect the course of the investigation, and this constitutes a procedural violation that cannot be tolerated.
The Competition Board highlighted that even a single act of data deletion could result in a fine equivalent to five-thousandths of the company’s turnover, cautioning that no data should be deleted from any device for any reason after an on-site inspection has begun. In line with this finding, the Competition Board ruled that the Company had obstructed and hindered the on-site inspection and decided to impose an administrative monetary fine on the Company, corresponding to five per thousand (0.5%) of its turnover from the preceding fiscal year.
This Decision is of a precedential nature as it demonstrates the significant importance the Competition Board attaches to digital evidence, the broad interpretation of its inspection powers, and the deterrent stance it takes against the violation of these powers, the Decision sends a strong message to all undertakings regarding the necessity of safeguarding their digital assets and training their employees on this matter during on-site inspections.
V. CURRENT ISSUES AND COMPARATIVE LAW
1. Conflict with the Law on the Protection of Personal Data
The management of digital evidence during on-site inspections presents a series of contemporary challenges for both competition authorities and undertakings. One of the most fundamental issues is how to establish a balance between the broad investigatory powers of the authority and the fundamental rights of individuals and corporations, such as the right to privacy, the protection of personal data (within the scope of the Law on the Protection of Personal Data No. 6698), and the freedom of communication.
The examination of work-related correspondence on employees’ personal mobile phones constitutes one of the most sensitive points in this balance. Although the Competition Board includes such data within the scope of its investigations, as exemplified in the Decision, the limits and legal safeguards of this practice remain a subject of debate. At this point, it is imperative to strike a balance between the investigative powers of the competition authority and the individuals’ rights to the privacy of private life and the protection of personal data.
2. The Debate on Proportionality
The approach of the Competition Board that “a single act of deletion is sufficient” to constitute an obstruction, while providing legal certainty, gives rise to controversies concerning the principle of proportionality. For instance, there is a qualitative difference between an employee deleting a personal photograph in a state of panic and an employee systematically deleting an email that contains cartel evidence. Under the current approach, both actions are classified under the same category of obstruction and may be subject to similar punitive sanctions. In such a case, the question arises as to whether the penalty is proportionate to the gravity of the act.
3. Deterrence
The administrative (monetary) fine imposed on the Company serves as the most concrete example of the deterrence policy adopted by the Competition Board against acts of obstructing on-site inspections. This fine, pursuant to Article 16 of the Law No. 4054, was determined at a high rate of five per thousand (0.5%) of the undertaking’s turnover in the preceding fiscal year. The objective of the Competition Board is to render the potential benefit of evidence spoliation insignificant when weighed against the ensuing cost. Through this approach, not only is the subject undertaking penalized, but a clear and potent message is also sent to all other market players regarding the severe consequences of failing to fully cooperate during on-site inspections. This approach emphasizes that procedural rules are as significant as substantive rules and that compliance with them is non-negotiable.
The Competition Board’s strict stance, encapsulated by the principle that “even a single act of deletion is sufficient”, serves the objective of maximizing deterrence. If a different penalty were to be prescribed based on the nature of each specific case, undertakings might be tempted to risk deleting “less important” data, hoping to evade detection or incur a lesser penalty. However, the current system of fixed-rate fines with a high ceiling deters undertakings from engaging in such risk analyses. This situation creates a preventive effect, encouraging companies to be prepared for on-site inspections, to provide comprehensive training to their employees on this matter, and to establish robust compliance programs. Thus, deterrence is achieved not merely through penalization but also by fostering a culture of compliance.
4. Comparative Law
An examination of comparative law reveals that similar issues have been encountered on a global scale. The European Commission, in particular, adopts a very strict stance against the obstruction of digital evidence during on-site inspections. For instance, in the decision of “E.ON Energie” case, the European Commission imposed a significant fine on the company because a seal on an employee’s office was broken, despite the office having been officially sealed. Similarly, in the United States Department of Justice has considered the destruction of evidence in antitrust investigations to be the crime of obstruction of justice. This can lead to both monetary fines for the companies and imprisonment for the executives involved.
The approach adopted by Turkish law in the Decision, demonstrates considerable parallels with the practices within the European Union. A zero-tolerance policy against acts of digital obstruction, such as data deletion, is increasingly becoming a common standard in international competition law enforcement.
VI. CONCLUSION
The Decision of the Competition Board has established a significant precedent concerning the application of competition law in the digital age in Türkiye. This Decision has unequivocally affirmed that the authority for on-site inspections is not limited to physical premises and corporate information technology systems, but also extends to work-related digital data stored on employees’ personal devices. The most crucial outcome of the Decision is the establishment that the act of deleting data during an inspection constitutes an obstruction of the inspection, which, in and of itself, warrants a severe procedural penalty, irrespective of whether any evidence pertaining to the substance of the investigation is found. This situation imposes a substantial compliance obligation on undertakings.
It is not sufficient for companies merely to ensure substantive compliance with competition law; it is also of critical importance that they are prepared for a potential on-site inspection and adopt a transparent and cooperative stance throughout the process. It is necessary for employees to be thoroughly trained on how to conduct themselves during an on-site inspection, what data falls within the scope of the inspection, and the consequences of actions such as data deletion. The Decision demonstrates that any attempt to spoliate digital evidence will be severely penalized by the Competition Board and that scrutiny in this area will continue to intensify.
B. KEY FINDINGS
(1)The on-site inspection authority of the Competition Board is no longer confined solely to the undertaking’s official IT systems. Personal mobile phones, tablets, and instant messaging applications such as WhatsApp, where determined to be used for business purposes, have become an integral part of this authority.
(2)The inclusion of employees’ personal devices within the scope of inspections blurs the traditional and clear distinction between private and professional life, thereby generating new compliance risks for undertakings.
(3)When assessing an act of data deletion carried out after the commencement of an inspection, the Competition Board considers the act itself as a direct “obstruction of the inspection”, irrespective of the content of the deleted data or the employee’s intent (e.g., panic, error).
(4)The Decision has materialized the Competition Board’s “zero-tolerance” policy concerning the preservation of digital evidence. This policy demonstrates that even the most minor procedural violation can be subject to the most severe penalties.
(5)The fact that even a single act of data deletion is considered sufficient for the imposition of the maximum procedural fine, amounting to five-thousandths (%0.5) of the undertaking’s turnover from the preceding financial year, gives rise to serious legal debates regarding the principle of proportionality between the gravity of the act and the penalty.
(6)An employee’s deletion of data during an inspection is not characterized as a personal fault but as a direct infringement by the undertaking, with all legal consequences thereof being attributed to the undertaking.
(7)It is an indispensable compliance obligation for undertakings to provide regular and practical training to their employees on the importance of digital evidence, the consequences of data deletion, and the appropriate conduct during a potential on-site inspection (dawn raid).
(8)The administrative fine imposed for obstructing an inspection is not affected by the final outcome of the investigation on the merits. The undertaking is liable to pay the monetary fine even if it is ultimately found not to have committed a substantive competition law infringement.
(9)This strict stance adopted by the Competition Board against the spoliation of digital evidence is not an isolated practice; it is in full alignment with the established and stringent enforcement policies of authorities such as the European Commission and the U.S. Department of Justice regarding “obstruction of justice”.
(10)These developments indicate that for undertakings, it is no longer sufficient to comply with competition law merely in a substantive sense (e.g., refraining from price-fixing agreements); full compliance with procedural rules (e.g., preparedness for dawn raids, data management policies) is equally vital.
