A recent administrative court judgment upholding Turkish
Competition Authority's ("TCA")
decision involving cement producers triggered debates in relation
to TCA's powers during dawn raids. The administrative court
decision is noteworthy since it seems to disregard fundamental
legal principles enshrined in the Turkish Constitution by, in
particular, (i) extending the public authority's power beyond
the legal limits and (ii) relying on evidence, the admissibility of
which is highly controversial.
To begin with, the power of the TCA to conduct a dawn raid
arises from the Law on the Protection of Competition
("Competition Law"). Within this
framework, the Competition Law requires the TCA's experts to
act in accordance with Article 15 of the Competition Law, which
sets out the boundaries of the TCA's powers during dawn raids
examination of books, paperwork and
documents of companies and associations, and taking their copies if
requesting written or oral statement
on particular issues, and
performing on-the-spot examinations
with regard to any assets of companies.
Accordingly, the TCA does not need a specific search warrant
from the court for conducting a dawn raid. An authorization from
the Presidency of the TCA is well suited for visiting a company and
conducting on-the-spot dawn raid with regard to any asset of
The dawn raid in question occurred in early 2012 at the premises
of a cement company subject to a preliminary investigation. The
dawn raid started on its ordinary course, with the experts
presenting their authorization papers and identities. Proceeding
with the examinations, the TCA's experts searched a
manager's personal briefcase and seized a number of the
documents found in the personal briefcase. Later in the
investigation, the TCA used the documents seized from the briefcase
to support their allegations of anti-competitive behaviour and
found the investigated companies in violation of the Competition
The dawn raid procedure, as set forth under the Competition Law,
does not grant the experts the power to examine personal
belongings. In this framework, examining a personal briefcase might
very well constitute an unlawful extension of powers that the
Competition Law grants to the TCA and its officials. Nevertheless,
use of documents seized during this examination of the personal
briefcase as "evidence" might also breach the principle
of admissibility of evidence as laid down under Article 38 of the
Turkish Constitution which sets out that "findings
obtained through illegal methods shall not be considered
In its decision, the TCA only dedicated one paragraph to this
issue and claimed that the dawn raid and seizure was lawful. The
TCA introduced in its decision, "no opposition"
as a fact to justify the legality of the dawn raid by mentioning;
"the documents in the briefcase were examined without any
opposition". As specified above, the powers of the TCA
experts are limited with the assets of companies and "not
to oppose" or "grantingconsent" should no way be a ground to examine a
personal object. Yet, the fact that the TCA puts forward
"no opposition" as a justification for
examination of the briefcase could be interpreted to imply the
TCA's acknowledgment of the illegal nature of examination and
use of the unlawfully seized documents as "evidence".
The decision of the TCA was later brought to administrative
court for appeal. The court neither did question the legality of
the dawn raid involving examination of a personal briefcase nor
evaluated whether the TCA has exceeded its power. The court
indicated that the TCA seized the evidence during a dawn raid in
the office of the general manager. Failing to evaluate and discuss
the legality of TCA's powers and the use of unlawfully seized
documents as evidence, the court found the concerned dawn raid
"legitimate" and, thus, missed the opportunity
to create a much-needed legal certainty regarding the boundaries of
the TCA's powers in dawn raids.
Although the recent decision of the administrative court
upholding the TCA's decision left a question mark about the
TCA's powers during dawn raids, the legal struggle continues
before the Council of State as the parties have challenged the
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The European Commission recently published a draft directive to grant greater enforcement powers to national competition authorities (NCAs).
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