Within the scope of the preliminary investigation carried out with the decision of the Turkish Competition Board (“TCB” or the “Board”) dated 05.05.2023 and numbered 23-20/395-M, on 19.07.2023, simultaneous on-site inspections were carried out at Ufuk Hazır Beton İnşaat Turizm Ticaret ve Pazarlama Ltd. Şti (“Ufuk“), DYM Değişim Yapı Market İnşaat Enerji Maden Gıda Tarım Hayvancılık Dayanıklı Tüketim Malları Nakliye Turizm Sanayi ve Ticaret Ltd. Şti (“DYM“) and Kösem Yapı Mimarlık Mühendislik Madencilik Taşımacılık İnşaat Makine Pazarlama San. ve Tic. Ltd. Şti. (“Kösem“). Within the context of the decision, administrative fines were imposed due to the prevention of on-site inspection as a result of a deletion detected in one of the undertakings and no findings were found in the on-site inspections conducted in other undertakings.

  1. The case officers arrived at Ufuk and entered the room of the Company Manager at 10:11, starting the examination at 10:15. During the inspection, it was determined that the Company Manager, whose room was entered at 10:11, after being warned not to delete any data, deleted the correspondence in the group named “İşgalciler” (“Occupiers”) on WhatsApp at 10:11:14. The former participants of the group were analyzed, and it was found that officials working at competitors were also in the group but had left it.
  2. The case officiers has arrived at the DYM at 10.08. After being informed that one of the employees was in Samsun, the where was the mentioned employee was checked via live location; the employee was called and it was seen that he was on his way to Samsun and was located close to the address where the undertaking’s location. No data was received from the devices analysed and the e-mail address found to be used in common by the employees. Contrary to the deletion detected in Ufuk and the screenshot showing the time when former group participants left the group, no deletion was detected in the WhatsApp application during the on-site inspection conducted at DYM. On the other hand, DYM official stated that DYM’s ready-mixed concrete facility is located within the area designated as pasture land, the facility is considered as “occupation” by the Ministry of Internal Affairs and Aydın Governorship due to its location within the pasture land, the works regarding the evacuation and licensing processes are continuing and an application has been made together with two other ready-mixed concrete companies (Ufuk, Kösem) located within the 85 acres of pasture land in order to obtain the necessary administrative permits, meetings have been held with the administrative authorities in this context and all three undertakings are conducting the relevant processes through a joint lawyer.
  3. On the same day, Kösem was visited at 10.12 and the computers of the employees involved at the undertaking were examined. During the on-site examination conducted at Ufuk, it was determined that the Kösem official had left the WhatsApp group named “İşgalciler” at 10.15. During the examination conducted on the mobile device of the Kösem official, although the relevant group could not be accessed, no record of leaving the relevant group was encountered and no deletion process could be detected.

As a result of the evaluation made;

  1. In terms of the on-site examination conducted at Ufuk, the time of entry to the undertaking for the on-site examination was 10.10, the room of the relevant person was entered at 10.11 and the deletion from the WhatsApp group named “İşgalciler” seconds before the notification was made (10-15 seconds after) was recorded in the minutes. On the grounds that the correspondence made in the group of competitor undertakings in the WhatsApp was deleted after entering the undertaking, it was evaluated that the access of the case handlers to the evidence and findings that could be obtained during the on-site examination was prevented and it was decided to impose an administrative fine.
  2. During the on-site investigation conducted at the DYM, telephone calls were made at 10.17 and 10.27 with an official of one undertaking and at 10.18 with an official of another undertaking who was not present at the premises. From the screenshot obtained at Ufuk, it was determined that one of the officials left the relevant group at 10.2 and the other at 10.10. Regarding the undertaking official who left the group at 10.1 before the case handlers informed them, it was assessed that this action could not be characterised as obstruction of the on-site inspection since the person in question was not present in the undertaking and the deletion took place before the notification was made. Considering that the employee of the other undertaking left the group at 10.2 after being informed at 10.18, it was decided to impose an administrative fine.
  3. Kösem’s premises were entered at 10.12 and it was determined that the employee left the group at 10.15. It was assessed that the on-site inspection was prevented due to the act of leaving the Whatsapp group to which the officials of the rival undertaking were members and deleting the Whatsapp group after the inspection was started, and it was decided to impose an administrative fine.

As a result, the Board has concluded that (i) deletions occurring within a very short period of time (10-15 seconds after) following the commencement of the inspection and the provision of information are considered as hindering/complicating of the on-site inspection, and (ii) deletions occurring before the employee who is not present at the attempt is contacted and informed cannot be considered as hindering of the on-site inspection.
The Board member Mr. Hasan Hüseyin Ünlü has indicated that -as also indicated in the previous TCB decisions- in an individual application decision of the Constitutional Court published in the Official Gazette on 20.06.2023, a violation decision was ruled regarding the exercise of the power of on-site inspection regulated in Article 15 of Law No. 4054 on the Protection of Competition in the absence of a court order. He noted that since the relevant legislative provision is currently in force, there is no obstacle to continuing the use of the power of on-site inspection as regulated in the law, where he mentioned that after the issuance of the relevant Constitutional Court decision, the direction in which the administrative judiciary will guide the implementation is problematic and uncertain for the time being. Therefore, he emphasized that cases related to alleged acts of obstruction/delay in on-site inspections which directly related to the exercise of the power of on-site inspection and relevant administrative fines should not be handled until precedent is established in the administrative judiciary.

You can access the full text of the reasoned judgement from the link below:

https://www.rekabet.gov.tr/Karar?kararId=97d4d920-bf1c-40de-aacf-1348d9890cd1