NEWSLETTER-2020-metin

146 NEWSLETTER 2020 Setting Legal Grounds for On-site Inspections* Att. Merve Bakırcı Introduction Several changes have been introduced to Law No. 4054 on the Protection of Competition (“Law No. 4054”) with Law Amending the Law on the Protection of Competition numbered 7246 (“Law No. 7246”) which was published in the Official Gazette dated 24.06.2020 and numbered 31165. One of these changes, regarding on-site inspections, set legal foot- ing for the broad range of powers the Authority experts exercise dur- ing on-site inspections. As mentioned in previous newsletters, prior to the amendment, it could have been argued that the procedures adopted during on-site inspections were not entirely the same with the proce- dure set out in the legislation and to an extent were modelled during the on-site inspection depending on the attitudes of employees’ and the extent of use of technological and cloud systems within the inspected undertaking. Pursuant to Article 15 of Law No. 4054, the Board was entitled “ To examine the books, any paperwork and documents of un- dertakings and associations of undertakings, and take copies thereof if needed. ” Having said that and although it was not explicitly set out in the relevant Article, in practice and depending on the facts of the case, it was observed that the Authority experts examined personal phones, e-mail accounts, even WhatsApp messages of employees, and did not consider concerns regarding General Data Protection Regula- tion (“GDPR ”) as legitimate, during on-site inspections. Therefore, as mentioned in previous newsletters, considering the rapid technological changes all around the world, the Authority experts were not able to adopt a literal reading of Law No. 4054 with regards to on-site inspec- tions, which gave them a right to inspect books, any paperwork and documents . With the introduced change, it is specifically stated that * Article of July, 2020