The Constitutional Court Confirmed the Competition Authority's Power to Conduct On-Site Inspections

The Constitutional Court decision dated 6 November 2025 and numbered E. 2023/174, K. 2025/224 (“Constitutional Court Decision”), published in the Official Gazette dated 17 February 2026 and numbered 33171 ruled that the provision in Article 15 of Law No. 4054 on the Protection of Competition (“Law No. 4054”) concerning the Turkish Competition Board’s (“Board”) authority to conduct on-site inspections does not violate the Constitution. The Decision was rendered in response to applications filed by the Council of State 13^th Chamber and the Ankara 11^th Administrative Court in the context of lawsuits seeking the annulment of administrative fines imposed by the Board.

The courts that filed the objections argued that the expression “in cases it deems necessary” in the first sentence of the first paragraph of Article 15 of Law No. 4054 and the provision in the second sentence of the third paragraph of the same article stipulating that “in the event of obstruction of on-site inspection or the possibility of such obstruction, on-site inspection shall be carried out by a judge’s decision of the criminal court of peace” are contrary to Articles 2, 13, and 21 of the Constitution and requested the annulment of these provisions.

The Constitutional Court’s Decision and Evaluations

1. The Issue of the Applicable Rule

Regarding the request for annulment of the second sentence of the third paragraph of Article 15 of Law No. 4054, the Constitutional Court determined that the cases before the courts filing the objections concerned requests for the annulment of administrative fines imposed pursuant to Article 16/1(d) of Law No. 4054, but that there was no decision by a judge of the criminal court of peace issued in the cases in question due to the obstruction of an on-site inspection. The Constitutional Court defined the ‘applicable rule’ as rules that have a positive or negative impact on the resolution of issues arising at different stages of the case under consideration or on the outcome of the case. The Court concluded that the rule in question did not constitute a rule capable of having a positive or negative effect on the resolution or conclusion of the cases.

Therefore, the Constitutional Court concluded that the rule in question could not be applied in resolving the cases and rejected the relevant applications on the grounds of lack of jurisdiction.

2. The Issue of Unconstitutionality

The first sentence of Article 15/1 of Law No. 4054 states: “In carrying out the duties assigned to it by this Act, the Board may conduct inspections at undertakings and associations of undertakings in cases it deems necessary.” In the objection applications, it was argued, in summary, that the rule in question did not limit the Board’s on-site inspection authority to cases where delay would be prejudicial, that there was no requirement for such a decision to be submitted to the competent judge within twenty-four hours and that, accordingly, constitutional safeguards were not ensured, claiming that the rule was contrary to Articles 2, 13, and 21 of the Constitution.

The Constitutional Court examined the matter within the framework of the principle of legal certainty, which is one of the fundamental elements of the rule of law set out in Article 2 of the Constitution. The Constitutional Court stated that while the rule in question regulates that the Board may conduct inspections at undertakings when it deems necessary, the scope of the on-site inspection authority is limited to the performance of the duties granted to the Board by Law No. 4054.

Referring to the first paragraph of Article 167 of the Constitution, the Constitutional Court emphasized that the State is obliged to take measures to ensure the healthy and orderly functioning of goods and services markets and to prevent monopolization and cartels that may arise in the markets either de facto or by agreement. In this regard, the Court highlighted that the Board’s obligation to conduct on-site inspections “in cases it deems necessary” can be determined by considering the circumstances of the specific case. It also held that the legislator has discretionary power in determining the tools and methods to be used to prevent the formation of monopolies and cartels in the markets and that the on-site inspection authority granted to the Board falls within this discretionary power.

In this context, the Constitutional Court stated that the rule in question did not violate Articles 2 and 167 of the Constitution, but that the rule was not related to Articles 13 and 21 of the Constitution.

Based on the reasons explained, the Constitutional Court decided to reject the objection and ruled by majority vote that the phrase “in cases it deems necessary” in the first sentence of paragraph 15/1 of Law No. 4054 was not contrary to the Constitution and that the objections should be rejected.

Dissenting Opinions

The Constitutional Court’s decision was taken by a majority vote, with Hasan Tahsin Gökcan, Engin Yıldırım, Kenan Yaşar, Yusuf Şevki Hakyemez and Selahaddin Menteş dissenting from the majority opinion.

Dissenting Opinion of Mr. Gökcan

In his dissenting opinion, Gökcan emphasized that the application in question should be assessed within the framework of the guarantee of inviolability of the domicile, as stipulated in Article 21 of the Constitution. Referring to the Constitutional Court’s decision dated 23 March 2023 and numbered 2019/40991 concerning Ford Otosan, Gökcan emphasized that on-site inspections carried out at workplaces should be examined within the scope of violations of the inviolability of the domicile.

In the dissenting opinion, it is stated that the officials appointed by the Board’s decision are granted the authority to enter the residential areas of the workplaces subject to examination, examine records and data, and take samples without a court order; however, this authority is not limited to cases where delay would cause harm and may be exercised in all circumstances. It was emphasized that, in order for a judge’s decision to be obtained, the relevant parties’ refusal to allow the inspection is required, and even if it could be interpreted that the Board would apply this only in cases where delay would be prejudicial, no constitutional guarantee of a judicial decision after the ruling and application was provided.

Consequently, the dissenting opinion stated that the rule should be annulled as it is contrary to the constitutional safeguards provided under Articles 13 and 21 of the Constitution.

Dissenting Opinion of Mr. Yıldırım and Mr. Yaşar

In their dissenting opinion, Yıldırım and Yaşar emphasized that the expression “in cases it deems necessary” in question leaves the intervention in fundamental rights entirely to the Board’s discretion; it does not define cases where delay would be prejudicial, does not provide objective criteria, and does not clarify in which circumstances a judge’s decision is required. They noted that this situation is inconsistent with the principles of legality, certainty and prevention of arbitrariness provided under Articles 2 and 13 of the Constitution.

Furthermore, it was stated that the sentence providing for a decision of a judge of the criminal court of peace in cases where an on-site inspection is prevented or likely to be prevented is applicable in the specific case and is an integral part of the legal regime interfering with the inviolability of the domicile. According to Yıldırım and Yaşar, both the phrase “in cases it deems necessary” and the sentence providing for the decision of the judge of the criminal court of peace fail to sufficiently protect the right to inviolability of the domicile guaranteed by Article 21 of the Constitution, as they do not limit the intervention to cases where delay would be detrimental and they make judicial review contingent on exceptional circumstances. Yıldırım and Yaşar concluded that these provisions also violate Articles 13 and 21 of the Constitution in terms of the principles of legality and proportionality.

Dissenting Opinion of Mr. Hakyemez

In his dissenting opinion, Hakyemez stated that both of the rules in question were applicable in the case and that both provisions represented norms regulating interference with the inviolability of the domicile in the specific case and were effective in resolving the case.

Hakyemez further stated that the majority’s departure from the Ford Otosan decision, its failure to review the aspect of inviolability of the domicile under Article 21 of the Constitution, and its failure to justify the change in precedent created problems in terms of legal stability and predictability. In the Ford Otosan decision, the Constitutional Court examined the Board’s authority to conduct on-site inspections, as regulated in Article 15 of Law No. 4054, and ruled that the provision violated the inviolability of the domicile guaranteed by Article 21 of the Constitution because it allowed inspections to be carried out at workplaces without a court order. In his dissenting opinion, Hakyemez emphasized that the majority’s approach, diverging from the Ford Otosan decision, represented a regression in the protection of fundamental rights and freedoms and was inconsistent with the Constitutional Court’s case law.

Consequently, according to Hakyemez, the majority’s approach is inconsistent with both the principle of reasoned decisions within the scope of the right to a fair trial and the function of the Constitution to guarantee fundamental rights and freedoms.

Dissenting Opinion of Mr. Menteş

Menteş stated that he did not agree with the majority opinion based on the reasons expressed by Hakyemez.

Conclusion

With the Constitutional Court Decision, the Board’s on-site inspection authority regulated in Article 15 of Law No. 4054 will continue to remain in force in its current form. The Board will be able to conduct inspections in undertakings and associations of undertakings whenever it deems necessary; in the event that an on-site inspection is prevented or there is a likelihood of prevention, the inspection may be carried out with the decision of a criminal judge of peace.

The Constitutional Court Decision constitutes an important precedent confirming the scope of the Board’s authority in the conduct of competition investigations and inspections. With the confirmation of the Board’s on-site inspection authority by the Constitutional Court Decision, it is of great importance that undertakings act in compliance with Law No. 4054 within the framework of competition law compliance programs and fulfil their legal obligations.

The text of the Constitutional Court Decision in question can be found in the Official Gazette dated 17 February 2026.