New Development
The Council of State’s 13th Chamber (“Council of State”), in its decision dated 13 January 2026 and numbered Case No.2023/2772, Decision.2026/36 (“Council of State’s Decision” or “Decision”), upheld the judgments of both the first instance court and the regional administrative court annulling the administrative fine imposed on Sahibinden Bilgi Teknolojileri Pazarlama ve Ticaret A.Ş. (“Sahibinden”) for obstructing an on-site inspection. The Council of State Decision emphasized that the mere deletion of data or communication records from a personal device during an inspection may not, in itself, be sufficient to conclude that the inspection was obstructed. Rather, it must first be demonstrated, on the basis of concrete evidence, that the content in question constitutes “business data” falling within the Turkish Competition Authority’s (“TCA”) investigative powers.
While the Council of State’s Decision reaffirmed both the importance of preserving the effectiveness of on-site inspections and the significance of sanctions for obstructing such inspections, it also underscored that data stored on personal devices does not automatically fall within the scope of the TCA’s inspection powers. According to the Decision, for a sanction to be imposed, it must be established through concrete evidence that the deleted or inaccessible content qualifies as “digital business data”.
Turkish Competition Board’s Decision Subject to the Council of State’s Decision
As part of an investigation launched by the Turkish Competition Board (“TCB”) on 1 April 2021 into alleged no-poach agreements in the labour market involving several undertakings, including Sahibinden, an on-site inspection was conducted at Sahibinden’s premises on 9 April 2021. During the inspection, it was determined that communications in certain WhatsApp groups used by one of Sahibinden’s employees had been deleted after the inspection had commenced. The TCB further noted that communications from the same WhatsApp groups were identified on the devices of employees of another undertaking and considered this to corroborate its finding that the relevant messages had been deleted after the commencement of the inspection. The TCB concluded that the deletion prevented access to evidence and information that could potentially have been obtained during the inspection. On this basis, in its decision dated 27 May 2021 and numbered 21-27/354-174 (“TCB’s Decision”), the TCB found that Sahibinden had obstructed the on-site inspection and imposed an administrative monetary fine pursuant to Article 16(1)(d) of Law No. 4054 on the Protection of Competition (“Law No. 4054”).
TCB’s Decision was based on the ground that deleting data after the commencement of an on-site inspection constitutes conduct that directly affects the effectiveness of the inspection and may therefore be subject to sanction. Relying on technical examinations, digital forensic findings, and technical assessments provided by the Information Technologies Department of the TCA, the TCB concluded that the communications contained in the relevant WhatsApp groups had been deleted after the inspection had begun. Against this background, the TCB decided that the deletion of data following the commencement of the inspection to constitute an interference resulting in the obstruction or hindrance of the inspection process.
A key feature of the TCB’s Decision was the emphasis placed on the act of data deletion itself and its impact on the effectiveness of the on-site inspection when assessing whether a sanction for obstruction should be imposed. In this regard, the TCB concluded that the deletion of data after the inspection had commenced and prevented access to evidence and information that could potentially have been obtained through the inspection. Accordingly, the TCB imposed an administrative monetary fine for obstructing an on-site inspection due to the deletion of the communications contained in the relevant WhatsApp groups, in line with its precedents.
Judicial Review Proceedings
In the action brought by Sahibinden seeking the suspension of execution and annulment of the TCB’s Decision, the Ankara 2nd Administrative Court (“Court of First Instance”), in its decision dated 28 September 2022 and numbered Case No.2022/254, Decision No.2022/1882, emphasized the importance of on-site inspection powers for the enforcement of competition law and acknowledged that undertakings are required to refrain from conduct aimed at concealing evidence once an on-site inspection has commenced by officials of the TCA. At the same time, however, the Court of First Instance stated that, for an administrative sanction to be imposed, the conduct serving as the basis for the sanction must be established, together with all of its constituent elements, through concrete information and evidence. The Court of First Instance took into consideration inter alia that the device on which the deletion was identified was a personal device; and that the communications in question did not concern company business. In light of these considerations, the Court of First Instance concluded that the conduct at issue was not of a nature capable of serving as the basis for the imposition of an administrative monetary fine.
Accordingly, the 8th Administrative Litigation Chamber of the Ankara Regional Administrative Court (“Regional Administrative Court”), through its decision dated 25 May 2023 and numbered Case No.2022/1717, Decision No.2023/765 sided with the judgment of the Court of First Instance.
The Council of State’s Assessment of Personal Devices and the “Digital Business Data” Criterion
Following the rejection of the TCA’s appeal against the judgment of the Court of First Instance, the TCA filed a further appeal before the Council of State, bringing the dispute before the 13th Chamber of the Council of State. In its Decision, the Council of State upheld the judgment of the Regional Administrative Court and concluded the judicial proceedings concerning the annulment of the administrative monetary fine.
According to the Council of State, by their very nature, on-site inspections must be conducted without prior notice, unexpectedly, swiftly and without interruption. The sanction for obstructing an on-site inspection under Law No. 4054 serves as a mechanism aimed at preserving the effectiveness of the investigation process. In this respect, the Council of State expressly stated that the sanction for obstructing an on-site inspection performs a protective function against disruptions that may arise during an investigation.
At the same time, however, the Council of State emphasized that the TCA’s power to conduct on-site inspections is not unlimited. The Decision specifically underlined that inspections carried out on personal devices should be conducted with greater caution, given that such inspections may also interfere with the right to privacy. In this context, the Council of State stated that the TCA is subject to certain obligations when conducting examinations on personal devices and that it is important for the TCA to demonstrate, in a concrete manner, why the data reviewed following its quick review qualifies as “digital business data”.
A key aspect of the Council of State’s assessment is that the dispute was not centred on whether the act of data deletion had occurred, but rather on whether the deleted content constituted “digital business data” falling within the scope of the TCA’s inspection powers. Indeed, the Council of State did not question the technical findings in the case file indicating that data deletion had taken place. Instead, it examined whether the TCA had sufficiently demonstrated that the WhatsApp groups containing the deleted communications involved any business data. With respect to the facts of the case, the Council of State found that, although the WhatsApp group containing the deleted communications could be accessed through another employee’s device, it had not been concretely established that the relevant group contained business data. The Council of State further noted that, based on the examination of the communications available in the case file, the content in question could be characterised as personal communications rather than business data. Accordingly, the Council of State concluded that, with respect to the communications found on the personal device and identified as having been deleted, the element of “digital business data” had not been established in a concrete manner and, on that basis, confirmed the judgment of the Regional Administrative Court annulling the administrative monetary fine.
Conclusion
While confirming both the importance of preserving the effectiveness of on-site inspections and the role of the relevant sanctioning mechanism in safeguarding investigative processes, the Council of State emphasized that, before a sanction may be imposed on the basis of content stored on a personal device, the TCA must demonstrate, in a concrete manner, why such content can be regarded as “digital business data”.
Nevertheless, it remains unclear to what extent the Decision will lead to a change in the TCA’s on-site inspection practices in practice, what specific indicators will be regarded as sufficient to establish the existence of “digital business data”, and how this approach will be reflected in future decisions of the TCB. Accordingly, the practical implications of the Decision and its impact on enforcement are likely to become clearer only through the TCB’s future decisional practice and the development of subsequent case law.
