Fishing Expeditions – Reloaded

Those who are familiar with competition law know that conducting on-site inspections, so-called dawn raids, is crucial in unearthing violations. Overly broad use of this power, however, may cause problems. In recent years, the term ‘fishing expeditions’ has been used to describe situations that are beyond the fair scope of this power. Semantic aspect of this term implies that if you catch a big enough net, you will get an evidence on some kind of wrongdoing.

Last week, ECJ handed down essential judgments as to this issue in Case T-135/09 Nexans v. Commission and Case T-140/09 Prysmian v. Commission. You can also reach some comments on these cases at here (GCR), here (Kluwer Blog), and here (Kartellblog). In this post, however, we want to look at the implications in Turkish competition law.

Very similarly to other jurisdictions, officials of the TCA, while going for a dawn raid, carry with them an authorization certificate showing the subject-matter and purpose of the examination, and that an administrative fine shall be imposed if incorrect information be provided pursuant to Article 15 of the Act.  This certificate is issued by the TCA. Hence it is not necessary to get, at first, a search warrant from a court to conduct a dawn raid in Turkish competition law.

The first controversial issue is the subject-matter and purpose of the authorization certificate: How particular should the terms of the authorization certificate be? Is it adequate to state that the inspection relates to infringements of Article 4 of the Act? Is it necessary to specify titles of undertakings (and/or subsidiaries of them) in which the inspection takes places? Is it necessary to indicate relevant market(s), if so how much detail should be given? Up til now, claims on this issue have been rejected by the Supreme Administrative Court.

The second problematic part in authorization certificates is that if there are other illegal items found as an incident of a valid authorization certificate, there is nothing that precludes the TCA from adding to the charges against alleged undertakings. To the best of my knowledge, this kind of incident has never happened before. If it is the case, there are going to be harsh debates on whether inspection should be limited only to what was alleged in the authorization certificate and whether any other illegal material found as an incident to the inspection should be excluded.

The third issue is related to the search conducted on computers during on-site inspections. It is very controversial in Turkish competition law enforcement whether the TCA officials have a power to copy entire (or part of) hard drives. Hence officials can only conduct searches on computers and then print out the relevant documents. Therefore this issue seems plain in Turkish competition law side, which is contrary to EU side since the authorities use their power to copy hard drives of computers.

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