| Metin PEKTAŞ,Competition Law Partner | Zehra Ahsen KAYACI, Lawyer | Arife Gizem ŞAHİN, Trainee Lawyer |
SUMMARY
Pursuant to Article 15 of Law No. 4054 on the Protection of Competition, the Competition Authority (“Authority”) is vested with the power to conduct “on-site inspections” at undertakings and associations of undertakings when deemed necessary in the discharge of its statutory duties. In order to safeguard the effectiveness of such inspections, the Competition Board (“Board”) generally adopts a stringent approach towards conduct that obstructs or impedes the exercise of this authority; in particular, data deletion acts are regarded as obstruction of on-site inspections irrespective of the nature of the deleted data or whether such data can be recovered. Nevertheless, there exist decisions wherein this approach has been relaxed in circumstances where a distinction can be drawn between deletion acts carried out at the employee’s volition and those resulting from systemic or automatic processes, and where data integrity has been subsequently restored. The Samsung Decision is noteworthy in that it demonstrates how such distinction may become determinative in the assessment of obstruction of on-site inspections and adopts an interpretation constituting an exception to the Board’s established approach. In this context, it may be asserted that the Samsung Decision has given rise to a need for reassessment of the Board’s approach towards obstruction of on-site inspections.
Keywords: Competition Authority, On-Site Inspection Power, Obstruction of On-Site Inspection, Data Deletion and Automatic Deletion Act.
INTRODUCTION
The most contentious and significant power of the Competition Authority (“Authority”), as an independent and autonomous administrative authority, is undoubtedly the power of on-site inspection, and determining which conduct falls within the scope of obstruction of on-site inspections is of paramount importance. Experts of the Authority, by virtue of the authority conferred upon them by the Competition Board, may conduct on-site inspections at companies within the framework of preliminary investigations and/or investigations they conduct, and during such inspections, they may encounter certain obstructive and/or impeding conduct on the part of company employees. Conduct relating to obstruction of on-site inspections may, through a simple classification, be categorised under three headings: physical obstruction, delay, and deletion; among these, the conduct most frequently subject to debate is the deletion act. Deletion conduct may occur in the form of deliberate deletion of specific documents, e-mails, or messages, or independently of content, in the form of leaving internal company communication groups or mass deletion of e-mails or messages due to panic or anxiety during the inspection. According to the Board’s established caselaw, the material consideration at this juncture is that no conduct which impedes or obstructs the on-site inspection should be undertaken from the moment the Authority’s experts enter the undertaking’s premises until they depart therefrom. Consequently, deletion acts deliberately performed after the commencement of an on-site inspection are assessed within the scope of obstruction of on-site inspections regardless of whether the deleted correspondence can be recovered and irrespective of the content of such data.
However, in certain decisions, the Board has departed from its established caselaw and has considered that certain deletion and/or group departure acts are not sufficient to reach the conclusion that the on-site inspection has been obstructed. The Samsung Decision rendered by the Board in the recent period is one of the most striking examples in this regard, and in this study, both decisions demonstrating the Board’s established caselaw will be addressed and the Samsung Decision will be examined together with decisions departing from such caselaw.
I. THE COMPETITION AUTHORITY’S POWER OF ON-SITE INSPECTION
Law No. 4054 on the Protection of Competition (“Law No. 4054”), whilst regulating the fundamental rules of competition law, also sets forth the powers of the Board. Pursuant to Article 15 of Law No. 4054, the Board is empowered to conduct on-site inspections for the purpose of detecting competition infringements. Within this scope, experts employed by the Board may examine all types of data and documents kept by undertakings and associations ofundertakings in physical and electronic environments, and copies and physical samples of such data may be obtained. The experts are vested with the power to examine all types of content used within the undertaking, including electronic devices such as telephones, computers, and tablets used by the undertaking, as well as physical files, documents, and agendas.
On-site inspections are conducted on the basis of a written authorisation document prepared by the Authority’s experts which constitutes the legal basis of the power, and the parties subject to inspection are obliged, pursuant to Law No. 4054, to ensure and facilitate the complete conduct of the on-site inspection by the Authority’s experts and to submit the originals or copies of all information, documents, books, and other records requested. Within this scope, the Authority’s experts may, when deemed necessary, also conduct inspections on employees’ personal telephones and e-mails.
II. CONDUCT CONSTITUTING OBSTRUCTION OF ON-SITE INSPECTIONS ACCORDING TO COMPETITION BOARD CASELAW
Pursuant to Law No. 4054, it has been stipulated that an administrative fine shall be imposed in the event that the Board’s on-site inspection is obstructed or impeded. However, which acts shall be deemed to have obstructed or impeded the on-site inspection is not explicitly defined in Law No. 4054, and this matter has been shaped through the Board’s decisions within the framework of caselaw. Indeed, upon examination of the Board’s established decisional practice, it is observed that conduct aimed at obstructing on-site inspections may manifest in various forms. Within this scope, such conduct may be classified under three main categories: physical obstruction, delay, and deletion. Obstructive acts manifest in different forms for each category.
Physical obstruction occurs in the form of actual impediment or complete prevention of access by the experts tasked with conducting the on-site inspection to the relevant devices, documents, or information. Accordingly, conduct such as not admitting the experts to the undertaking’s premises, failure to produce computers, mobile phones or files, failure of persons required to provide information within the scope of the inspection to appear at the inspection venue, or departure from the inspection process is assessed as physical obstruction.
On the other hand, conduct in the nature of delay includes acts such as keeping the experts waiting at the building entrance, postponement of the commencement of the inspection by advancing various justifications, or deliberate delay of access to information systems.
Upon examination of the Board’s decisions concerning obstruction of on-site inspections, it is observed that deletion acts, being the third category, stand out as one of the most common obstructive conduct in practice. The deletion act, which may be assessed as “destruction of evidence” and “impairment of data integrity”, may be penalised on the ground that it impedes the inspection, taking into account the approach that the on-site inspection must be “unannounced”, “expeditious”, and “uninterrupted”, even if the deleted data can be recovered. Within this scope, the Board’s approach towards deletion acts will be examined in detail under the following heading.
III. THE COMPETITION BOARD’S APPROACH TOWARDS DELETION AND GROUP DEPARTURE ACTS
It is observed that the assessment that deletion acts performed during the on-site inspection process impede the access of the professional staff tasked with the inspection to potential evidence has become established caselaw before the Board. The deletion act may occur in the form of deletion of e-mails, documents, or files from computers after the commencement of the on-site inspection; alternatively, it may be performed through deletion of messages from mobile phones or destruction of physical documents. Considering the increasing penetration of technology into business life nowadays, it is observed that deletion acts are most frequently performed through computers and mobile devices.
In the Board’s decisions examining obstruction of on-site inspections, it is observed that although there may not be a deletion act alone in certain files, an administrative fine is predominantly imposed due to conduct including the deletion act. The predominance of decisions imposing administrative fines due to deletion acts demonstrates that the Board’s approach towards deletion acts has a stable line to the extent that it may be characterised as established caselaw. It is understood that in established Board and court caselaw, there is a tendency to attach limited importance to matters such as whether the deleted data can be subsequently recovered or the nature of their content in terms of the concrete case; essentially, there is a tendency to consider the mere performance of the deletion act as sufficient. Indeed, in the Samsung Decision, the Board members issuing a dissenting opinion also drew attention to this approach and asserted that the relevant conduct should be characterised as obstruction of on-site inspections.
Another noteworthy approach of the Board regarding deletion acts is that it excludes from consideration the motivation underlying such act. For instance, in the AbbVie Decision, it is observed that the defence that an employee deleted WhatsApp messages during the on-site inspection on the ground that such correspondence related to a region outside Turkey and therefore fell outside the scope of the inspection did not produce any effect before the Board, and an administrative fine was imposed on the undertaking. Similarly, in the P&G Decision, a fine was imposed due to message deletion from groups alleged to contain private correspondence during the on-site inspection; it was demonstrated that the Board did not take into account the justification for the deletion act.
In the Board’s Pasifik Decision dated 01.12.2022, it was detected that 34 e-mails were deleted from an employee’s computer during the inspection; after the deleted e-mails were recovered, it was argued that the e-mails could not be technically deleted and were still present on the server, and therefore the inspection was not obstructed. The Board, citing prior administrative court decisions, stated that by its very nature the on-site inspection process must be “unannounced, expeditious, and uninterrupted”, and expressed that deletion acts occurring during the inspection are in the nature of “destruction of evidence” and obstruct/impede the inspection.
On the other hand, no Board decision has been encountered wherein the act of leaving a message group alone has been subject to an administrative fine. Given that the element intended to be concealed is essentially the content, leaving the group alone without deleting the group content does not appear consistent with the ordinary course of affairs. However, in circumstances where departure from the group is aimed at leaving no digital trace in addition to deletion of group messages, it is observed in Board decisions that the group departure act may also constitute the basis for a fine. Indeed, in the recent Panagro Tarım Decision, it is understood that although the act of leaving the group was detected, in the final assessment the group departure act was not separately addressed due to the existence of deletion acts in the concrete case. Therefore, whilst it is not possible to reach a definitive conclusion regarding the Board’s approach towards the act of leaving a group alone, it may be inferred that such act may be assessed as an infringement of lower intensity compared to the deletion act.
IV. THE SAMSUNG DECISION AND OTHER COMPETITION BOARD DECISIONS ON THE MATTER
In the Competition Board’s Samsung Decision dated 10.04.2025 and numbered 25-14/330-157, it is observed that an assessment departing from the Board’s established caselaw has been adopted. In the Decision, it was detected that only an act of leaving a communication group was actually performed. It is understood from Samsung’s internal correspondence that a corporate communication application called “Knox Teams” created by the company was used, and due to the technical structure of this application, in the event of leaving the group, the relevant chat records were also automatically deleted. During the on-site inspection conducted by the Authority, it was detected that the relevant group was left and consequently the messages were systemically deleted. However, in the inspections conducted by the Authority’s experts on the devices of other employees in the same group, access to the correspondence was achieved, but no findings that could give rise to an infringement in terms of the subject matter of the inspection were encountered.
Within this framework, the Board, differently from its established caselaw, did not assess the act of leaving the group and the automatic deletion of chats consequent thereto as obstruction of on-site inspections, also taking into account that no findings subject to investigation were reached in the inspections conducted on other devices.
This decision of an exceptional nature must be assessed in terms of established caselaw. Within this scope, the decision will be addressed through two fundamental axes. First, in terms of established caselaw, it will generally be observed that “deletion” is the principal act subject to sanction. As is known, during on-site inspections, suspicious acts may manifest in the form of leaving work or private groups created in the communication channel (typically WhatsApp), deleting correspondence, or destroying files present on devices. In the Samsung Decision, due to the conduct of correspondence through a specific application used, it is understood that leaving the work groups resulted in automatic deletion. In this context, the principal act subject to sanction should not be assessed as leaving WhatsApp groups. This is because in the Decision, it is observed that the employee performed only the act of leaving the group, but in the Board’s assessment, the act was characterised as a “deletion act” even though automatic.
Indeed, in the Board’s İpek Gıda Decision dated 13.04.2023, in one of the two deletion acts examined, it was detected that the WhatsApp conversation content was empty, but since log records could not be accessed, no assessment that the on-site inspection was obstructed was made. On the other hand, during the inspection performed on another employee’s mobile device, it was detected from the “former participants” section of a WhatsApp group in which correspondence was deleted that an employee left the group after the on-site inspection commenced, and the time at which the relevant employee left the group was determined to be after the commencement of the on-site inspection, and the conclusion that the on-site inspection was obstructed was reached. As observed, in this Decision as well, the principal act giving rise to obstruction of the on-site inspection is not the “group departure” act alone, but rather that this act together with the deletion act produces the consequence of destruction of evidence.
In the Board’s Vatan Decision, it was examined whether the deletion acts were manual (hand) deletion acts performed by the user or automatic deletion acts linked to WhatsApp’s 24-hour message feature. Within the scope of the inspection conducted, it was observed that in the automatic deletion act, the relevant deletion act did not appear in the WhatsApp.log records. Furthermore, as a result of tests conducted at the Authority, it was detected that the deletion act was performed manually by the employee, and therefore the relevant deletion act was not an automatic deletion act linked to the timed message feature. Thereupon, no assessment was made regarding the content of the deleted data, and it was decided that the on-site inspection was obstructed.
In the dissenting opinion rationale set forth in the Samsung Decision, certain Board members stated that following the established caselaw, any deletion act performed after the on-site inspection commenced or any act leading to automatic deletion, by itself, results in obstruction or impediment of the on-site inspection. Within this scope, it was emphasised that subsequent access to the relevant data through other devices does not eliminate the obstructive or impeding nature of the said act. Furthermore, recalling that administrative fines were imposed in similar circumstances in past Board decisions, an opinion was expressed that Samsung obstructed and impeded the on-site inspection due to deletion acts, and for this reason, an administrative fine should be imposed.
The other matter to be assessed in the Decision is the recovery of deleted content and whether such content is material as a result of the inspection. In the Board’s Unmaş Decision, it is assessed that “the fact that deleted data has been accessed through digital forensics devices has no effect on the nature of the act as obstruction/impediment of the on-site inspection. It is considered that acceptance of a contrary situation could constitute a reward for undertakings in a scenario where such undertakings delete the relevant data but the deletion act cannot be detected by digital forensics devices.” A similar determination is set forth in the Tekyol Beton Decision: “no necessity to make a determination regarding other matters such as whether the documents deleted and recovered during the inspection are of a nature indicating infringement, whether the data has been recovered or not, has been envisaged.”
In many decisions such as the Unmaş Decision cited above and in court caselaw, the same ruling has been established. For instance, in the Çimsa Decision, it was stated that although the deletion act was performed and no correspondence regarding the subject matter of the investigation was found in the recovered chats, even if found, the establishment of data deletion is sufficient for acceptance as obstruction. Similarly, in the Teknosa Decision, matters such as the recovery and examination of data in response to the data deletion act, and the deleted data not being related to the subject matter of the file, were advanced by the undertaking, but the Authority did not accord weight to these defences. In the decision of the Ankara 18th Administrative Court numbered 2022/1621 E., 2022/3150 K., it was expressed that whether the content of deleted e-mails is private or work-related, or whether they can be subsequently recovered or not, has no effect in terms of imposition of the penalty; even if the e-mail correspondence has been recovered by the experts conducting the on-site inspection, it is clear that the on-site inspection has been impeded due to delayed access to the data. With this rationale, the Board decision regarding imposition of an administrative fine on the relevant undertaking was found lawful.
In contrast, differently from the aforementioned decisions, in the Samsung Decision, the recovered data was taken into assessment, and due to the grounds that no correspondence relating to the investigation was found therein, the deletion act occurring as a consequence of leaving the group was not sanctioned.
Whilst the Board has tended to maintain its established caselaw in decisions rendered before and after the Samsung Decision, its approach in this Decision has brought certain debates to the fore. However, there have also been decisions in the past where the Board departed from its established caselaw, and these decisions have also given rise to similar debates.
One of the decisions causing debate similar to the Samsung Decision is the Hepsiburada Decision dated 07.10.2021. In the Decision, although a deletion act was performed after the on-site inspection commenced, it was decided not to impose an administrative fine without setting forth a rationale. In the dissenting opinion rationale, reference was made to the element of rationale set forth under the heading “Matters to Be Included in the Decision” of Law No. 4054; criticism was directed that the Decision was established in a manner contrary to law due to the absence of such element in the Decision. Furthermore, it was expressed that whether the deleted data is subsequently recovered or not is not material, whether adequate warning was given to employees during the inspection, whether the deleted data is connected to the subject matter of the inspection, or matters such as good faith should not be taken into account, and only the date and time of the deletion act should be taken as basis. In addition, in the said dissenting opinion, it was stated that in a scenario where subjective reasons are assessed and accepted according to the concrete case in obstruction of on-site inspection cases, this situation will both render the decisions debatable and render ineffectual the on-site inspections which must be conducted “without notice, unannounced, expeditiously, and uninterruptedly” as explicitly stated in the decisions and which constitute the most important evidence-gathering tool.
In the Balsu Decision, which is a decision similar to the Samsung Decision, the deleted content was recovered and examined, and as a result of the inspection, since none of such data was of an infringing nature, it was decided that there was no place for an administrative fine. A debate also occurred among Board members in the Balsu Decision. A Board member setting forth a different rationale, whilst concurring with the conclusion reached by the Board, did not concur with the rationale. In the case subject to the decision, which is contrary to the established caselaw strictly applied by the Board and which gave rise to debate, a large number of e-mails were deleted en masse during the on-site inspection, but the deleted e-mails were recovered by the Authority’s experts through Microsoft’s “Recover Deleted Items” option, and no document was taken from the recovered e-mails.
Similarly, in the Samsung Decision, although it was recorded that the act of leaving the group occurred after 10:11, which was the time the inspection commenced, as a result of the inspection conducted on the mobile devices of other employees in the groups, access to the correspondence in the relevant groups was achieved, and it was assessed that no findings and/or documents relating to the subject matter of the inspection were encountered in the said correspondence; the conclusion was reached that the said acts could not be accepted as obstruction or impediment of the on-site inspection.
However, it is observed that the Board has continued its established caselaw in its recent decisions rendered after the Samsung Decision. Indeed, in the Maruf Oysal Decision dated 28.08.2025 taken after the Samsung Decision, and in the Tekyol Decision, group departure and deletion acts were assessed as obstruction of on-site inspection. In the Maruf Oysal Decision, the Board detected that employees performed deletion acts through the “Clear Chat” operation after leaving work groups, and characterised this operation as an act aimed at destruction of evidence. Furthermore, in the said decisions, the Board made assessments that “for the purpose of determining the state of obstruction/impediment of the on-site inspection, the establishment of deletion of data present on devices subject to inspection after the on-site inspection has commenced has been deemed sufficient, and no necessity to make a determination regarding the content of the data or other matters such as whether it has been recovered or not has been envisaged”, and imposed an administrative fine on the undertaking.
In the Tahsildaroğlu Decision dated 28.08.2025 and the IWALLET Decision dated 14.08.2025, conduct in the form of deleting conversation and activating timed messages was similarly assessed. In the Tahsildaroğlu Decision as well, the Board maintained its stance in the UNMAŞ Decision and reached the conclusion that the on-site inspection was obstructed. In the IWALLET Decision, wherein it was detected that correspondence was deleted by employees after the on-site inspection commenced and 24-hour timed messages were activated, it was again stated that the establishment of deletion of data present on devices subject to inspection after the inspection commenced was deemed sufficient for making the assessment that the on-site inspection was obstructed.
In light of these assessments, it may be interpreted that despite the Samsung Decision, the Board has maintained its approach in its established caselaw in the recent decisions it has rendered.
CONCLUSION
Within the framework of the decisions set forth above, it may be stated that as a general rule, the deletion act is accepted as conduct impeding/obstructing the on-site inspection independently of the nature of the deleted data and whether it can be recovered or not. However, it is observed that the Board assesses deletion acts performed at the employee’s volition and automatic deletion acts through different perspectives, and in circumstances where the deletion act occurs automatically, it may depart from its established caselaw. Furthermore, in the Samsung Decision and other decisions wherein the conclusion that the on-site inspection was obstructed was not reached despite the existence of a deletion act, it may be assessed that action was taken on the assumption that the deleted data could be recovered and it was ascertained that no data that could give rise to an infringement was found therein; in other words, data integrity was ensured.
Whilst it may be asserted that these assessments undermine the principle of legal certainty, it may also be advanced that there is a consistent aspect thereto. Indeed, it is considered that the assessment in the Samsung Decision that the deletion of group messages as a result of the group departure operation was not a deletion act performed at the employee’s volition but rather a systemic deletion act was effective in the Decision rendered. On the other hand, it would be expected that employees would foresee that the act of leaving a group in a communication platform frequently used within the Company would result in automatic deletion of correspondence. However, it is observed that this matter was disregarded in the said Decision.
In conclusion, it must be accepted that the Samsung Decision should be borne in mind as among the Board’s decisions constituting an exception in the assessment of obstruction of on-site inspections, and that the said exception will not be applied in every circumstance.
1 Competition Board’s Decision dated 10.04.2025 and numbered 25-14/330-157
2 Competition Board’s Decision dated 20.05.2021 and numbered 21-26/327-152; Competition Board’s Decision dated 08.07.2021 and numbered 21-34/451-226; Competition Board’s Decision dated 12.08.2021 and numbered 21-38/544-265; Competition Board’s Decision dated 08.09.2022 and numbered 22-41/599-250; Competition Board’s Decision dated 02.03.2023 and numbered 23-12/180-56; Competition Board’s Decision dated 11.05.2023 and numbered 23-21/407-138; Council of State 13th Chamber’s Decision numbered 2008/5890 E., 2013/847 K.; Ankara 13th Administrative Court’s Decision numbered 2013/1598 E., 2014/1495 K.
3 Competition Board’s Decision dated 05.10.2023 and numbered 23-47/898-318
4 Competition Board’s Decision dated 08.07.2021 and numbered 21-34/452-227
5 Competition Board’s Decision dated 01.12.2022 and numbered 22-53/797-32
6 Competition Board’s Decision dated 30.04.2024 and numbered 25-17/407-188
7 Competition Board’s Decision dated 13.04.2023 and numbered 23-18/325-110
8 Competition Board’s Decision dated 28.04.2023 and numbered 23-19/363-125
9 Competition Board’s Decision dated 20.05.2021 and numbered 21-26/327-152
10 Competition Board’s Decision dated 28.08.2025 and numbered 25-32/756-448
11 Competition Board’s Decision dated 26.01.2023 and numbered 23-06/74-23
12 Competition Board’s Decision dated 28.04.2023 and numbered 23-19/364-126
13 Competition Board’s Decision dated 07.10.2021 and numbered 21-48/678-338
14 Competition Board’s Decision dated 17.08.2023 and numbered 23-39/727-250
15 Competition Board’s Decision dated 28.08.2025 and numbered 25-32/755-447
16 Competition Board’s Decision dated 28.08.2025 and numbered 25-32/756-448
17 Competition Board’s Decision dated 14.08.2025 and numbered 25-31/726-431