Turkish Competition Authority imposes series of fines for dawn raid obstruction
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15 December 2021
Three recent decisions by the Turkish Competition Board (TCB) show not only the importance of cooperating with the Turkish Competition Authority (TCA) in order to facilitate an inspection, but also the broad range of the TCA’s powers.
As discussed in a previous newsletter, the amendments to the competition rules explicitly allow case handlers to review and examine all kinds of digital data stored in digital information systems, including mobile phones and tablets. These changes, amongst others, have signalled the start of a new era for competition law enforcement in Turkey.
However, it seems that the clear wording of the law could not help some undertakings to be less resistant to the TCA. Three decisions issued in just three months demonstrate that the TCA is determined to ensure that the new law is embraced by all undertakings.
Obstructing a dawn raid is likely to come at a price
All three recent decisions relate to the TCA’s ability to examine digital devices during a dawn raid. In each, employees were found to have deleted data from digital devices.
IGSAS: deleting WhatsApp chats and emails
During the inspection, TCA case handlers noted that there was no WhatsApp chat history on an IGSAS sales and marketing executive’s mobile phone.
Although the executive indicated that WhatsApp was not his main means of communication and that he generally prefers phone conversations, the examination of another employee’s device revealed that the executive in question left an intra-company WhatsApp group chat slightly before he arrived at the office and after the dawn raid had started.
Case handlers also found out that regional sales representatives attempted to delete email correspondence during the raid.
The officials were, however, still able to retrieve the deleted data using forensic tools.
The TCB imposed an administrative fine on IGSAS, amounting to 0.5% of its 2020 turnover.
UNMAŞ: deleting WhatsApp chats despite a warning to preserve data
Like the IGAŞ decision, this decision also concerned attempts to delete WhatsApp chat data – this time by the UNMAŞ commercial director.
UNMAŞ argued that all of the deleted data was retrieved by the TCA. It also submitted that the commercial director deleted the WhatsApp conversations (at 10.38 and 10.44) before the company-wide email sent by the deputy CEO (at 11.16), which warned all employees to not delete any data.
However, the TCB found that case handlers had specifically informed the company’s representatives not to delete any data at 10.15. And the commercial director confirmed that he/she was informed by the deputy CEO of the dawn raid at 10.20, i.e. before the WhatsApp chats were deleted.
The TCB therefore rejected UNMAŞ’s arguments. It stressed that if it were not to impose any fines in cases where deleted data can be retrieved using forensic tools, this may be construed as rewarding the undertakings involved. UNMAŞ was fined 0.5% of its 2020 turnover.
Çiçek Sepeti: deleting WhatsApp chats and discussing email deletion
Case handlers found out that after the dawn raid started, Çiçek Sepeti employees discussed deleting emails exchanged with a certain person and deleted WhatsApp chats.
Çiçek Sepeti was fined 0.5% of its 2020 turnover.
Key takeaways for companies facing dawn raids
- Do not delete any data during the raid:
- deleting data is considered to be obstruction and is likely to lead to an administrative fine.
- most deleted data will still be accessible using forensic tools.
- Case handlers have the power to:
- enter Business premises
- examine records related to the business by using forensic review tools
- seize and/or copy such records, documents, or emails
- seal any business premises, books, or records for the period and to the extent necessary for the inspection
- ask employees for explanations of facts or documents
You may ask your external counsel to be present during the dawn raid but the case handlers can initiate their review before the counsel arrives.