Turkey: An Analysis Of A Recent Board Decision Assessing The Circumstances Of Access To Personal E-mail Account Contents

The Turkish Competition Authority ("Authority") published the Turkish Competition Board's ("Board") reasoned decision[1] imposing an administrative fine on Ege Gübre Sanayii A.Ş. ("Ege Gübre") as per Article 16(d) of the Law No. 4054 on the Protection of Competition ("Law No. 4054") based on the finding that Ege Gübre hindered on-site inspection by refraining the case handlers' evaluation of a personal e-mail correspondence which is found to be directly related to a competitive behaviour within the scope of the preliminary investigation initiated to assess the price increases in the fertilizer sector[2].

Before providing its interim decision, the Board examined the allegations of the case handlers and the statements of Ege Gübre provided within the on-site inspection report. Within the said report, the case handlers initially stated that the Ege Gübre's general manager used a personal e-mail account with a superonline.com extension that is directed to its business e-mail account. Moreover, the case handlers underlined that after being informed that the general manager's business e-mail account also included its personal correspondences, the business account was made available within the scope of the preliminary investigation. That being said, further to a search by using the name of another undertaking under investigation namely, "Toros", the case handlers have identified an e-mail message indicating that an undertaking (Igsaş) stated that it will revise its prices. The English convenience version of the exact quote from the decision is as follows "Igsaş said it was changing prices". Upon discovering this e-mail message, the case handlers printed out the relevant correspondence. The company officials indicated that the relevant message was among the personal correspondences, abstained from handing over the relevant message and thus, prevented the access of the case handlers to the relevant document. Thereafter, although the company officials allowed the case handlers to continue their review after separating the personal and the business e- mail accounts, the case handlers informed the company officials that the said conduct would be deemed as hindering of on-site inspection.

On the other hand, the Board reiterated the statements of Ege Gübre, indicating that the case handlers requested access to a personal e-mail correspondence which was mistakenly located within the general manager's business account and thus, without any legal basis or court decision, the relevant request would constitute an infringement of constitutional rights mainly of the violation of privacy and freedom of communication.

In this regard, the Competition Authority conducted a second on-site inspection at the premises of Ege Gübre the next day by obtaining an injunction decision from the Criminal Judgeship of Peace[3], which allowed the case handlers to examine the books, written documents, obtain necessary copies of oral and written statements, and to examine any assets belonging to the company. Within the second on-site inspection, the case handlers have detected an e-mail message with respect to Igsaş's prospective prices communicating that "The current prices are listed on the 19.11 Page. Last week Igsaş has told Gemlikçiler that it will make a price increase of 2200 TRY/ton for urea fertilizer on Tuesday (which is tomorrow). Accordingly, Gemlik made a price increase last week. They told us that if Igsaş fails to do so, the prices for urea fertilizer may be loosen".

Accordingly, Ege Gübre submitted a statement to the Authority on January 29, 2019, stating that the case handlers continued their inspection without any difficulty or intervention and that the company officials provided the case handlers with easy access, opened up all of its offices and provided the documents requested. That being said, Ege Gübre underlined even though the scope of the injunction decision was limited with the documentations and belongings of the company, the case handlers collected the copies of personal e-mail correspondences and identified documents for their review at the presence of law enforcement.

In light of the statements provided above, the Board indicated the e-mail message with respect to Igsaş's prospective prices, is found to be directly related to a competitive behaviour. In consequence, the Board, without providing any explanation on its assessment, unanimously found that Ege Gübre's relevant conduct would be deemed as hindering onsite inspection and thus, decided to impose an administrative monetary fine in the amount of 0.5% of its gross income for the 2017 financial year under Article 16 (d) of the Law No. 4054.

Although, the decision does not include any explanations on the Board's assessment of the relevant conduct or does not answer to the questions on whether the said correspondence (i) would be considered as a personal communication, (ii) would be used as an appropriately collected evidence by the Authority or (iii) would be deemed within the scope of the injunction decision, the decision is important as it sheds some light to exceptional circumstances of obtaining a personal communication which is directly associated to a competitive behaviour that is found to be related with the preliminary investigation at hand. It is yet to be seen how the Board's future assessments on hindering on-site inspection would be affected by this decision.

This article was first published in Legal Insights Quarterly by ELIG Gürkaynak Attorneys-at-Law in September 2019. A link to the full Legal Insight Quarterly may be found here

[1] The Board's decision dated February 7, 2019, and numbered 19-06/51-18.

[2] The Board's preliminary investigation decision dated October 11, 2018, and numbered 18-38/619-M.

[3] Decision of the Aliağa Criminal Judgeship of Peace dated 17.01.2019 and numbered 2019/76 D.

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