1. Introduction
Article 15, titled “On-Site Inspection”, of Law Nr.
4054 on the Protection of Competition grants the Competition Board the
authority to conduct on-site inspections at the premises of undertakings and
associations of undertakings where it deems necessary for the fulfilment of the
duties entrusted to the same under the Law. Pursuant to this provision, the
Board is authorized to examine the books and documents of undertakings or
associations of undertakings, as well as any data and documents kept in
physical or electronic form and within information systems, and to take their copies
and physical samples, and to request written or oral explanations on specific
matters, and to conduct on-site inspections of the assets of undertakings. The inspections are
carried out by experts serving within the Competition Authority, who act upon
presentation of their authorization documents indicating the subject matter and
purpose of the inspection, as well as the administrative fines that may be imposed
in case any false or misleading information is provided.
Undertakings, for their part, are obliged to provide
copies of the requested information and documents. In cases where the on-site
inspection is actually obstructed or where there is a likelihood that it might be
obstructed, the Law provides that the inspection shall be carried out upon a
decision of the judge of criminal court of peace.
Accordingly, the Law, as a rule, grants the Board the
authority to conduct on-site inspections of the assets of undertakings by its
own decision, without the need for any prior judicial authorization or
approval. In addition, the Board is also vested with the power to impose
administrative fines in cases where the inspection is hindered or obstructed.
On the other hand, Article 21 of the Constitution
guarantees the inviolability of domicile and stipulates that, except for
reasons such as national security, public order, the prevention of crime, the
protection of public health and morals, or the protection of the rights and
freedoms of others, no dwelling may be entered, searched, or have its property
seized without a duly issued judicial warrant. In cases where delay would be
prejudicial, such measures may be carried out upon the written order of the competent
authority; however, this order must be submitted for the approval of a judge
within twenty-four hours, and the judge must render a decision within
forty-eight hours; otherwise, the seizure shall automatically become null and
void.
Although the provision in question bears the heading “inviolability
of domicile,” when assessed within the framework of the regime of fundamental
rights and freedoms, it is accepted that this safeguard is not limited solely
to private residences, and that workplaces may also benefit from constitutional
protection within the scope of inviolability. The on-site inspection authority,
which had previously been brought before the Constitutional Court under the “Ford
Otosan” decision, has this time been referred to the Court through objections
raised by the 13th Chamber of the Council of State and the 11th
Administrative Court of Ankara in actions brought against the administrative
fines imposed by the Board.
2. Analysis of the Decision
Under its decision, dated November 6, 2025 and bearing
the Basis number 2023/174 and the Decision number 2025/224, and pursuant to the
provision, published in the Official Journal on February 17, 2026, the
Constitutional Court concluded, by a majority vote, that the on-site inspection
authority, as set out under Article 15 of Law Nr. 4054 on the Protection of
Competition, is not contrary to the Constitution. As noted above, the decision
is significant in that it follows the jurisprudence established by the
Constitutional Court in 2023, in response to an individual application by Ford
Otomotiv Sanayi A.Ş.—commonly referred to in practice as the “Ford Otosan decision”—and
considers the same statutory provision this time within the scope of a concrete
judicial review. Under the decision on the aforementioned individual
application, the Court had noted that the manner in which on-site inspections
are carried out could give rise to issues with respect to the right to
inviolability of domicile, guaranteed under Article 21 of the Constitution, and
that inspections conducted without a judicial warrant might not be consistent
with constitutional safeguards. The courts that lodged the objections were the
13th Chamber of the Council of State and the 11th Administrative
Court of Ankara. In these applications, the constitutional compliance of two
separate provisions, set out under Article 15 of Law Nr. 4054 on the Protection
of Competition, was contested. The first of these is the first paragraph
granting the Competition Board the authority to conduct on-site inspections at
the premises of undertakings and associations of undertakings “where it deems
necessary.” The second is the third paragraph providing that, in the event that
the inspection is obstructed or there is a likelihood of obstruction, the
on-site inspection may be conducted upon a decision of the judge of criminal
court of peace. The Court assessed these two provisions separately, conducting
a procedural review with respect to the third paragraph and a substantive
review with respect to the first paragraph.
The Constitutional Court determined that the cases
subject to the objections did not arise from actions based on a judicial
decision under the third paragraph of Article 15, but rather from
administrative fines imposed under Article 16. Accordingly, it concluded that
the third paragraph was not applicable in the concrete disputes, and the
applications were dismissed on procedural grounds for lack of jurisdiction.
The Court examined the first paragraph within the
framework of the principle of the rule of law, as set out under Article 2 of
the Constitution, and the duties assigned to the State under Article 167 to
protect competition and ensure the orderly functioning of markets. The decision
notes that the on-site inspection authority serves the purpose of establishing
a competitive order entrusted to the State under Article 167 of the
Constitution. With regard to the principle of the rule of law, the decision
emphasizes that legal norms must be clear and foreseeable, noting that the
phrase “where it deems necessary” does not grant the Board unlimited or
arbitrary authority; rather, its powers are limited to the scope of duties set
out under the Law and to the purpose of detecting competition infringements.
Furthermore, the Court highlighted that on-site inspections are carried out by
authorized experts upon presentation of their authorization documents, and that
any physical intervention or use of force is only permissible pursuant to a
decision of the judge of criminal court of peace. Within this framework, the
Court emphasized that the Authority does not possess inherent powers to use
force. The Court further noted that competition infringements may arise in
highly diverse and unpredictable ways, and therefore it is not possible for the
legislature to set out every eventuality in detail. Whether an on-site
inspection is to be conducted must be determined based on the circumstances of
the specific case, and this is regarded as an extension of the discretion
granted to the legislative body.
In conclusion, the Constitutional Court held that the
phrase contained in the first paragraph of Article 15 is not ambiguous and does
not violate the principle of the rule of law, ruling that the provision is in
compliance with Articles 2 and 167 of the Constitution.
Another notable aspect of the decision is that the
Court did not carry out its review within the framework of the regime of
limitations for fundamental rights and freedoms, set out under Article 13 of
the Constitution, nor within the context of the right to inviolability of
domicile, guaranteed under Article 21. In addition, there was no explicit
reference to the previous individual application decision.
3. Dissenting Opinions
As noted above, the decision was adopted by a majority
vote. The dissenting opinions primarily refer to the Ford Otosan decision and
its content, asserting that the contested provision should be examined within
the framework of the right to inviolability of domicile, guaranteed under
Article 21 of the Constitution. According to the dissenting opinions, the
Board-authorized officials are granted the authority to enter portions of
workplaces that have the character of a dwelling, without a judicial warrant, and
to examine and take samples of records and data located there. However, this
authority is not limited solely to situations where delay would be prejudicial;
rather, it is structured as a general and continuous power. The judicial
decision comes into play only if the parties concerned do not consent to the
inspection, meaning that the constitutional safeguard is made conditional on an
exceptional circumstance. In addition, it is emphasized that there is no
clearly provided mechanism for judicial review in constitutional terms
following the procedure. For these reasons, the dissenting opinions concluded
that the provision is inconsistent with the guarantees, set out under Articles
13 and 21 of the Constitution, and it should be annulled.
In another dissenting opinion, it was stated that the
phrase “where it deems necessary” leaves the authority to interfere with
fundamental rights entirely to the discretion of the authority. The opinion
notes that this phrase does not define situations where delay would be
prejudicial, lacks objective criteria, and does not clearly specify in which
cases a judicial award must be sought. This ambiguity was argued to be
inconsistent with the principles of legality, clarity, and prevention of
arbitrariness, set out under Articles 2 and 13 of the Constitution.
Furthermore, the dissenting opinions note that the
provision allowing recourse to the judge of criminal court of peace in cases
where the on-site inspection is obstructed or there is a likelihood of
obstruction is applicable in concrete disputes and forms an integral part of
the regime governing the inviolability of domicile. According to the dissenting
opinions, both the phrase “where it deems necessary” and the provision
regarding judicial award do not limit the interference solely to situations
where delay would be prejudicial, and they make judicial review conditional
upon an exceptional circumstance.
In this respect, the dissenting opinions argued that
the provision does not adequately safeguard the inviolability of domicile,
guaranteed under Article 21 of the Constitution. They further concluded that
the provisions in question are also inconsistent with Articles 13 and 21 of the
Constitution in terms of the principles of legality and proportionality.
The dissenting opinion argued that the majority’s
departure from this jurisprudence constitutes a regression in terms of the
protection of fundamental rights and creates a contradiction with the Court’s
previous decisions. Consequently, it was assessed that the majority’s approach
is inconsistent both with the principle of reasoned decisions and with the
Constitution’s function of safeguarding fundamental rights and freedoms.
4. Conclusion
In my view, the observations set out in the dissenting
opinions provide a strong and coherent framework with respect to constitutional
safeguards. Indeed, the on-site inspection authority granted to the authority directly
touches upon the domain of fundamental rights by its very nature. A power of
such breadth and involving practical intervention cannot be considered in
isolation from constitutional rights and freedoms. In particular, considering
that workplaces are also among the spaces protected under Article 21 of the
Constitution, evaluating the on-site inspection authority independently of the
guarantee of inviolability of domicile is not consistent with the
constitutional system. The scope of the intervention, the procedure for its
implementation, and the stage at which judicial review comes into play are
directly related to the essence of this constitutional safeguard. Furthermore,
taking into account the Constitutional Court’s assessment regarding the
inviolability of domicile under the Ford Otosan decision, adopting a completely
independent approach from this jurisprudence in the context of concrete
judicial review raises questions in terms of legal predictability and
consistency of case law. While methodological differences are possible in
constitutional review, examining a power that directly affects fundamental
rights in isolation from previous jurisprudence does not appear convincing with
regard to the integrity of the constitutional safeguard system.
Within this framework, it can be argued that the
dissenting opinions—asserting that the provision concerning on-site inspection
authority should be assessed in light of the principles of the rule of law,
legality, and proportionality, as well as the guarantee of inviolability of
domicile—rest on a stronger foundation in terms of the protection of
constitutional rights. The interpretation of administrative powers that have
the potential to interfere with fundamental rights independently of
constitutional safeguards and established jurisprudence is not consistent with
a rights-centered understanding of the Constitution.
Att. Melda İz
References:
1. The Decision, dated 06/11/2025 and bearing
the Basis number 2023/174 and the Decision number 2025/224, of the
Constitutional Court https://www.resmigazete.gov.tr/eskiler/2026/02/20260217-7.pdf
2. Constitutional Court Application, dated 23/3/2023,
of Ford Otomotiv Sanayi Anonim Şirketi (App. Nr: 2019/40991)
