- The Practice of Right of Access to the File
In Turkish competition law, the procedures, and principles of the right of access to the file, which is provided to the parties of the investigation initiated by the Authority for the purpose of exercising their right of defense, are regulated in the Communiqué on The Regulation of The Right of Access to The File and Protection of Trade Secrets. The provision in the second paragraph of Article 44 of the Law No. 4054. constitutes the legal basis of the Communiqué. Accordingly, the article states that "Those parties which are notified of the initiation of an investigation against them may, until their request for enjoying the right to hearing, ask for a copy of any documents drawn up within the Authority concerning them, and if possible, a copy of any evidence obtained." The Communiqué also sets a limit in terms of legal period, the parties can request for access to the file until the termination of the last written defense period.
The right of access to file is granted to the undertakings against whom administrative fine is requested and this right is limited to being exercised only once. Within the scope of the right of access to file, parties can have access to any document that has been drawn up and any evidence that the Authority has obtained concerning them. However following documents are excluded from this right;
- Internal documents of the Authority
- Documents that include trade secrets and other confidential information about other undertakings.
Internal documents are correspondences between units of the Authority, which are preparatory documents for the final decisions to be taken by the Board. Although it is stated in Article 6 of the Communiqué No. 2010/3 that the parties cannot access internal documents, access to this is not entirely blocked and any document that have the nature of exculpatory or inculpatory evidence can be examined at the Authority's headquarters, similar to the documents submitted in the applications made under the Leniency Regulation.1
In a set of recent Authority decisions, access requests have been rejected or postponed for the following reasons:
- The TCA rejected access to other documents, such as Excel spreadsheets included in correspondence attachments containing high levels of trade secrets or confidential information.
- The TCA rejected access to correspondence, and documents do not contain any exculpatory or incriminating evidence for the undertakings.2
- The TCA rejected access to documents containing trade secrets and other confidential information regarding other undertakings, associations of undertakings, and individuals.
- The TCA rejected access to Intra-Authority correspondences.
- The TCA postponed access to file for the investigation to be conducted securely and adequately and for pre-empting the likely threat of obscuring evidence 3
- The TCA rejected access to the file for failing to fill in some parts of the File Entry Request Form appropriately and providing general reasons for the documents requested to be accessed instead of concrete and explanatory reasons.4
The Authority has a well-established practice regarding the access requests to internal documents As mentioned in the DYO Boya5, Carrefoursa6, Vestel7 and Varinak8 decisions, preliminary inquiry report and initial examination report have the characteristics of preparatory procedure and the documents prepared within the Authority in the period until the decision to hold an inquiry are in the nature of the correspondence between Authority's units. The preliminary inquiry report is carried out to determine whether an investigation is necessary and does not contain a judgment about whether the parties have violated the Law. In this context, the report consists of presenting the opinions of the rapporteurs to the Board on whether or not an investigation is necessary. The Authority ensures that all the evidence obtained during the preliminary inquiry period was made available to the parties at various stages of the investigation process.
- Recent Google Decision9
In 2018, the Authority initiated an investigation against Google and its subsidiaries for violating Article 6 of Law No. 4054. In 2019, the Authority included Alphabet Inc. to the investigation. During the investigation, Google requested access to all information and documents within the file based on the Right to Information Act after Authority included Alphabet Inc. to the investigation back in 2019. As mentioned in the previous section, the Authority did not break its established practice in evaluating access to file requests in the Google Decision. The Authority responded to the application in summary as follows:
- TCA allowed Google representatives to review 106 documents at the Authority's headquarters. The reviews took three hours, and Google requested no additional time.
- Unless TCA determines otherwise, access to initial examination and preliminary inquiry reports is not permitted to access within Google's right to access to file.
- TCA has concluded that the documents obtained from the undertakings requested in the application are out of the scope of Law No. 4982 since they contain trade secrets.
- According to TCA, Google is the primary source of traffic for shopping comparisons and e-commerce sites, and traffic from Google is essential for the business interests of these companies. Therefore, TCA considered that the documents of undertakings have an extraordinary sensitivity.
- TCA did not allow access to the documents as it would be difficult for the Authority to obtain information during the investigation. Because if the documents submitted by other undertakings with a request for confidentiality are made accessible to Google, the identity of the undertakings will be revealed.
- TCA did not allow access to documents within right to access to file since the blackened parts of the documents cover trade secrets and such documents that should be kept confidential.
Board of Access to Information also rejected the complaint, considering that the response of the TCA to the applicant was appropriate and sufficient. In addition, the 14th Administrative Court of Ankara decided that there was no illegality in the rejection of the request for access to the initial examination report, preliminary inquiry report, and its annexes. The Ankara Regional Administrative Court rejected the appeal made concerning this decision.
However, in the lawsuit filed at the Ankara 5th Administrative Court against the refusal cases of the Authority and the Information Evaluation Board, the court determined that reports are influential in deciding whether to initiate an investigation against the plaintiff company, Google may access trade secret-free copies of such documents as part of its right to information, trade secret-free copies of these reports should be made available to Google in order to redress a reasonable balance between the right of defence and the protection of trade secrets. As a result, the court ruled that the refusal of the access request was contrary to law. Considering the cancellation, TCA has decided to clear the trade secrets of the initial examination report and preliminary inquiry report and make it accessible to Google officials.
Consequently, until today, TCA had an established practice regarding the right to access the file, the procedures and principles determined by Communiqué on The Regulation of The Right of Access to The File and Protection of Trade Secrets. However, with the judicial intervention in this practice, the Authority made the preliminary inquiry and initial examination reports available to the parties for the first time. We will see the effect of the approach in the Google Decision, which started a new era with this aspect, on the decisions in the coming period.
1 Turkish Competition Authority, 19-06/52-19, 07.02.2019
2 Turkish Competition Authority, 21-25/306-139, 04.05.2021
3 Turkish Competition Authority, 21-31/397-200, 17.06.2021
4 Turkish Competition Authority, 21-34/478-240, 08.07.2021
5 Turkish Competition Authority, 20-12/150-82, 27.02.2020
6 Turkish Competition Authority, 21-28/361-178, 31.05.2021
7 Turkish Competition Authority, 19-13/163-73, T. 28.03.2019
8 Turkish Competition Authority, 19-06/52-19, T. 07.02.2019
9 Turkish Competition Authority, 21-37/520-255, 05.08.2021
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