The Turkish Constitutional Court's Long-Awaited Ruling On The Competition Authority's Dawn Raid Powers

The Turkish Competition Authority ("TCA") is widely regarded as one of the most active competition authorities worldwide in conducting dawn raids and investigations. In a long-anticipated decision, the Turkish Constitutional Court ("Court") recently ruled on the constitutionality of the TCA's dawn raid powers. The judgment has drawn significant attention within the Turkish competition law community, as it addresses a debate that has persisted in recent years regarding the constitutional limits of administrative inspection Powers. Before turning to the Court's most recent ruling, it is useful to briefly recall the relevant background.

A. The Earlier Individual Application Judgment

In an earlier individual application judgment¹, the Court held that dawn raids carried out solely on the basis of an administrative decision of the TCA violated the constitutional protection of the inviolability of the domicile under Article 21 of the Turkish Constitution.

Under the TCA's established practice, case handlers had been authorized to conduct on-site inspections on the basis of certificates of authorization issued internally by the TCA, without prior judicial approval. While this practice was consistent with the Competition Act, the Court found that the statutory framework itself was unconstitutional because it did not require prior judicial authorization before entering undetakings' premises.

The Court ruled that the concept of residence extends beyond private homes to include workplaces, headquarters, and branches of legal entities. By classifying these professional spaces as residential premises, the Court concluded that dawn raids, such as those involving the seizure of emails from employee computers, constitute an interference with the constitutional right to residential immunity.

The Court emphasized that any intrusion into a residence without consent must, as a principle, be authorized by a judge. It further noted that while the law allows for administrative decisions in cases of imminent delay, the current competition framework fails to limit inspections to such emergencies. It also lacks the mandatory safeguard of submitting these decisions for judicial approval within 24 hours.

However, even before this individual application case, the Court maintained a distinction regarding the legality of the TCA's broader evidence-gathering tools. In a separate March 2023 judgment², the Court examined the amendments to the Turkish Competition Act allowing the TCA to take physical copies and samples of data. In that instance, the Court (with majority) found the provision to be constitutional, ruling that it met the requirements of legality and served a legitimate purpose within a democratic society.

B. The Constitutional Court's Review of Article 15 of the Competition Act (Constitutionality Control Judgment)

Following the individual application ruling, undertakings relied on that decision in ongoing administrative proceedings. Subsequently, two administrative courts referred certain provisions of Article 15 of the Competition Act to the Constitutional Court for abstract constitutional review.

Article 15 defines the scope and limits of the TCA's inspection powers. It authorizes the TCA to conduct on-site inspections at undertakings "in cases it deems necessary," and, as a general rule, does not require prior judicial authorization. It also provides that a criminal magistrate's decision may be obtained where obstruction occurs or is likely to occur.

The referring courts challenged constitutionality of:

• The phrase "in cases it deems necessary" which grants the TCA discretion to conduct dawn raids at undertakings.
• The provision allowing that inspections may be conducted via a criminal magistrate's decision when obstruction occurs or is likely to occur

They argued that these provisions violated constitutional guarantees, including the rule of law, the principle of legal certainty, the limits on restrictions of fundamental rights, the inviolability of the domicile, and the State's constitutional duty to regulate markets and prevent monopolization.

The Court first examined the principle of legal certainty as an element of the rule of law. The Court determined that the phrase " in cases it deems necessary" does not grant the TCA limitless or arbitrary power. Instead, the Court found that this discretion is bound by the statutory duties assigned to the TCA by Competition Act. The Court emphasized that legislation cannot be expected to exhaustively enumerate every factual scenario in which inspections may be required. Accordingly, it found the provision sufficiently clear, precise, and foreseeable to satisfy constitutional standard.

The Court further relied on Article 167 of the Constitution, which imposes upon the State a positive obligation to ensure the proper functioning of markets and to prevent monopolization. It concluded that the inspection regime serves this constitutional objective and pursues a legitimate public interest.

As for the second contested provision, the Court dismissed the challenge on procedural grounds.

Finally, the Court concluded that the contested rule serves a legitimate public interest that outweighs individual private interests in this specific context. The Court noted that the law already includes safeguards, such as the requirement for written authorization and the necessity of a magistrate's decision if an inspection is obstructed. On this basis, the Court found no violation of the Constitution and dismissed the objections, concluding that the provision is consistent with the State's constitutional duty to safeguard economic order.

C. Dissenting Opinions

An interesting point of the judgment is that there are five dissenting opinions. Notably, Justice Yusuf Şevki Hakyemez's opinion criticizes the Court's judgment in several ways.

Judge Hakyemez authored a particularly detailed dissenting opinion, characterizing the majority's decision as a significant regression in the protection of fundamental rights and freedoms. First, Hakyemez argued that dawn raids conducted at a company's premises directly interfere with the inviolability of the residence, a right protected by the Turkish Constitution. He asserted that management offices and non-public digital data systems are legally considered residential areas. Therefore, any entry or search in these areas should, as a rule, require a court order.

Hakyemez also criticized the phrase "in cases it deems necessary" for granting the TCA nearly unlimited discretion. Under the Turkish Constitution, interference with such rights must occur through a judicial decision or, in urgent cases, a written order from a competent authority. Hakyemez contended that allowing TCA to bypass these requirements based solely on its own discretion renders constitutional guarantees meaningless.

A central aspect of his dissent concerned the Court's departure from its recent individual application judgment. He argued that reversing course without a compelling and transparent justification undermines legal certainty and public confidence in the judiciary.

Other dissenting judges, including Deputy Chairman Hasan Tahsin Gökcan and Judge Engin Yıldırım, joined Hakyemez in his concerns. They noted that the power to examine and copy digital data is functionally identical to "search and seizure" activities in criminal law and therefore should be subject to equivalent constitutional safeguards.

D. Why This Decision Matters & Conclusion

The Court's recent judgment marks an important moment for competition law enforcement in Turkey. While the earlier individual application decision constituted an important victory for the applicant undertaking, its legal effect was confined to that specific case. By contrast, the present abstract constitutional review carries broader normative force and clarifies the constitutional status of the TCA's inspection powers. In practical terms, the ruling allows the TCA to continue exercising its existing dawn raid authority without systematically obtaining prior judicial authorization for each inspection.

The presence of diverse judicial opinions suggests that the procedural aspects of dawn raids are part of a continuing evolution. Consequently, this topic will likely remain a productive area for legal discussion.

KEYWORDS: Dawn raid, on-site inspection, procedural rules, constitutional court, constitutional law, right to privacy, inviolability of the domicile, search and seizure, rule of law

REFERENCE: Constitutional Court decision on the dawn raid rules of the Turkish competition law

Footnotes

1. Further details are available in our previous commentary on the judgment, which can be accessed through this link.

2. Please see the original Turkish version of the judgment via this link. Please note that an English version is not available

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