Green Light from the Constitutional Court to the Competition Board: Is the Ford Otosan Wave Coming to an End?

The Contested Provision and the Grounds for the Annulment Request

Article 15 of Law No. 4054 regulates the Board’s authority to conduct on-site inspections. Accordingly, the Board may conduct inspections at undertakings and associations of undertakings where it deems it necessary to fulfil the duties assigned to it under Law No. 4054. Furthermore, if the on-site inspection is obstructed or there is a likelihood of obstruction, the inspection may be conducted upon a decision of the criminal judgeship of peace.

Within the scope of actions brought for the annulment of administrative fines imposed by the Board, the Referring Courts concluded that (i) the phrase “where it deems necessary” and (ii) the sentence “In the event that the on-site inspection is obstructed or there is a likelihood of obstruction, the inspection shall be carried out pursuant to a decision of the criminal judgeship of peace”, both contained in the provision governing the Board’s on-site inspection powers, were unconstitutional. Accordingly, the Referring Courts applied to the Court for the annulment of the said parts of Article 15 of Law No. 4054.

In essence, the Referring Courts argued that the challenged provision does not limit the Board’s on-site inspection powers to situations where there is urgency due to the risk of delay, nor does it provide for an obligation to submit such decisions for the approval of a competent judge within twenty-four hours. For this reason, it was asserted that the provision is contrary to Articles 2 (the principle of the rule of law), 13 (restriction of fundamental rights and freedoms), and 21 (inviolability of domicile) of the Constitution.

The Issue of the “Applicable Rule”

The Court commenced its review by assessing whether the contested provisions qualified as “applicable rules” within the meaning of constitutional review.

Pursuant to Article 152 of the Constitution and Article 40 of Law No. 6216 on the Establishment and Rules of Procedure of the Court, a court hearing a case may apply to the Court for the annulment of a statutory provision if it considers that provision unconstitutional or finds the claim of unconstitutionality raised by a party to be serious.

However, as also emphasized by the Court, under the provisions, for a court to apply to the Court (i) there must be a case duly filed that falls within its jurisdiction, and (ii) the rule annulment of which is sought must constitute a rule applicable to that case. In this context, an “applicable rule” refers to provisions that are capable of being applied in resolving disputes arising at different stages of the proceedings or that may directly affect the outcome of the case.

In the present case, the Court noted that the cases pending before the Referring Courts concerned actions for the annulment of administrative fines imposed on undertakings and that, in the events underlying those cases, no decision of a criminal judgeship of peace had been issued on the grounds that the on-site inspection had been obstructed or that there was a likelihood of obstruction. 

Accordingly, the Court concluded that the rule stating, “In the event that the on-site inspection is obstructed or there is a likelihood of obstruction, the inspection shall be carried out pursuant to a decision of the criminal judgeship of peace,” was not a provision capable of having a positive or negative effect on the resolution or outcome of the cases.

For this reason, the Court held that the relevant part of the application should be dismissed, on the grounds that the rule in question was not capable of being applied in the cases pending before the Referring Courts.

The Issue of Constitutionality

The Court examined the part of the objection concerning the phrase “where it deems necessary” primarily considering Article 2 of the Constitution (the principle of the rule of law) and Article 167 (the regulation of markets and regulation of foreign trade). However, the Court found that the contested rule was not related to Articles 13 and 21 of the Constitution.

In this context, the Court first emphasized that one of the fundamental elements of the rule of law is the principle of legal certainty. According to this principle, statutory provisions must be clear, precise, comprehensible, practicable, and objective in a manner that leaves no room for hesitation or doubt for both individuals and the administration. Moreover, they must contain safeguards protecting against arbitrary actions by public authorities.

The challenged rule authorizes the Board to conduct on-site inspections at undertakings where deemed necessary, while expressly limiting this power to the performance of the duties assigned under Law No. 4054. It provides that inspections shall be carried out by Board experts upon presentation of an authorization certificate specifying the subject and purpose of the inspection. The rule further makes clear that, where an inspection is obstructed or there is a risk of obstruction, it may proceed only based on a decision by a criminal judgeship of peace, and that the Board lacks authority to employ coercive force on its own initiative.

In its assessment, the Court stated that the need for on-site inspections may arise in different circumstances while the Board performs its duties under Law No. 4054, and therefore it is not necessary for the legislature to enumerate exhaustively all situations requiring such inspections. The existence of circumstances necessitating an inspection should instead be evaluated in light of the specific conditions of each case.

Accordingly, the Court concluded that the scope of the Board’s power of on-site inspection and the circumstances under which it may be exercised are regulated with sufficient clarity, and therefore the provision cannot be considered ambiguous.

Furthermore, the Court stated that the contested provision was enacted to enable the collection of evidence for the detection of anti-competitive conduct and practices within the scope of the State’s obligation under Article 167 of the Constitution to ensure the sound and orderly functioning of markets and to prevent monopolization and cartelization that may arise either legally or de facto. Considering that the legislature has discretion in determining the tools and methods to be employed in preventing monopolization and cartelization in markets, and that the Constitution does not mandate a specific method at the constitutional level, the Court concluded that granting the Board the authority to conduct on-site inspections where it deems it necessary does not conflict with the State’s positive obligation arising from Article 167.

As a result, the Court decided, by majority vote, to reject the request for annulment on the grounds that the contested provision is not contrary to Articles 2 and 167 of the Constitution.

Dissenting Opinions

The Decision, adopted by majority vote, includes a considerable number of dissenting opinions containing significant evaluations. These dissenting opinions mainly concern (i) the violation of the inviolability of domicile, (ii) the limitation of fundamental rights and freedoms, and (iii) the issue of the applicable rule.

In many dissenting opinions, it is emphasized that in the established case law of the Court, the parts of workplaces that are not open to everyone are considered to have the character of a “domicile”. Therefore, it is argued that the exercise of on-site inspection powers constitutes an interference with the inviolability of domicile and is protected under the guarantees provided by Article 21 of the Constitution. In this regard, the failure of the Court to evaluate the contested provisions considering Article 21 was considered erroneous.

Indeed, pursuant to Article 21 of the Constitution, as a rule, no one’s domicile may be entered without a judge’s decision. However, only in cases where delay would be prejudicial may an exception be made to this rule through a written order of an authority authorized by law, and such order must be submitted to a judge’s approval within twenty-four hours. Despite this clear constitutional regulation, limiting the requirement of a decision by the criminal judgeship of peace only to cases where obstruction is likely narrows the scope of the protection provided by Article 21 and therefore constitutes a violation of the Constitution.

Furthermore, the dissenting opinions criticize the Decision for contradicting the Court’s recent Ford Otosan judgment. In this regard, it is stated that reaching different conclusions in individual application proceedings and constitutional review proceedings concerning the same issue within a short period of time, without providing a reasonable justification, raises serious concerns in terms of the principles of legal certainty and predictability.

Another prominent issue in the dissenting opinions concerns the limits of the interference with fundamental rights and freedoms arising from the contested provision. In this context, it is argued that the phrase “where it deems necessary” leaves the scope and conditions of interference with fundamental rights entirely to the discretion of the Board. Indeed, it is stated that the phrase does not define situations where delay would be prejudicial, does not provide any objective criteria, and does not clearly and foreseeably determine in which cases a judge’s decision would be required. Therefore, it is asserted that the contested provision is not compliant with the principles of legality, legal certainty, and the prevention of arbitrariness safeguarded under Article 13 of the Constitution.

It is further argued that excluding from review, on the ground that it did not constitute an “applicable rule,” the provision requiring a decision of the criminal judgeship of peace where an undertaking obstructs an on-site inspection or where there is a likelihood of such obstruction is not justified. Indeed, that provision forms an integral part of the legal framework governing interference with the inviolability of domicile and is capable of being applied in the present case. Accordingly, it is stated that the majority’s decision to leave this provision outside the scope of review is likewise incompliant with the Court’s established criterion of the “applicable rule”.

Conclusion

In the Decision, the Court departed from the approach it adopted in the Ford Otosan decision and concluded that the Board’s power to conduct on-site inspections is compatible with the Constitution.

In this context, the Court held that the provision in Article 15 of Law No. 4054 regulating the Board’s on-site inspection powers is consistent with the principle of the rule of law and the objective of ensuring effective supervision of markets.

However, the dissenting opinions argue that the Decision fails to sufficiently consider the constitutional guarantees concerning the inviolability of domicile and the limitation of fundamental rights and freedoms.

In any event, it may be said that the Decision has, at least for the time being, brought an end to the debates concerning the Board’s on-site inspection powers that had intensified following the Ford Otosan judgment.