Türkiye high court confirms constitutionality of Competition Board’s on-site inspection powers
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On 17 February 2026, Türkiye enacted a decision of the Constitutional Court 6 November 2025 (Case No. 2023/174, Decision No. 2025/224, 6 November 2025), which ruled that the provision in Article 15 of Law No. 4054 on the Protection of Competition concerning the Turkish Competition Board’s authority to conduct on-site inspections does not violate the Constitution. The Decision was rendered in response to lawsuits seeking the annulment of administrative fines imposed by the Competition Board (via applications filed by the 13th Chamber of the Council of State and the Ankara 11th Administrative Court).
The Decision is the Constitutional Court’s first abstract constitutional review upon referral of Article 15 following its judgment in individual application of Ford Otomotiv Sanayi A.Ş. (Ford Otosan) (Application No. 2019/40991, dated 23 March 2023). In that judgment, the Constitutional Court had held that on-site inspections conducted without a prior judicial warrant interfered with the inviolability of domicile protected under Article 21 of the Constitution.
Assessment of the Constitutional Court
In the proceedings before the referring courts objections were raised against two aspects of Article 15 of the Competition Law:
- the wording authorising the Board to conduct on-site inspections at undertakings and associations of undertakings “in cases it deems necessary”; and
- the provision in the second sentence of paragraph three 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”.
The Constitutional Court examined these objections separately.
Regarding the provision on inspections carried out upon a judicial decision in cases of obstruction or risk of obstruction, the Constitutional Court found that the pending cases before the referring courts concerned annulment actions against administrative fines imposed under Article 16 of the Competition Law and did not involve any inspection conducted pursuant to a judicial decision. 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 held that the contested provision was not a rule capable of having a positive or negative effect on the resolution or conclusion of the cases and therefore dismissed the objection on procedural grounds as the provision did not qualify as an applicable rule, without conducting a substantive constitutional review.
The issue of unconstitutionality
Regarding the wording “in cases it deems necessary” in the first paragraph of Article 15 of the Competition Law, the Constitutional Court conducted a substantive review primarily in light of the rule of law principle enshrined in Article 2 of the Constitution and Türkiye’s obligation under Article 167 to ensure the protection of competition and the proper functioning of markets.
In its assessment, the Constitutional Court referred to Article 167(1) of the Turkish Constitution and emphasised that the state is obliged to take measures to ensure the healthy and orderly functioning of goods and services markets and to prevent monopolisation and cartels that may arise in the markets either de facto or by agreement. The Constitutional Court held that the Board’s on-site inspection powers pursue a constitutionally legitimate aim, namely the prevention of monopolisation and cartels and the protection of effective competition. While the rule of law requires legal rules to be clear and foreseeable, the Constitutional Court found that the contested provision does not confer unlimited or arbitrary powers on the Board. Rather, the scope of the on-site inspection power is limited to the duties assigned to the Board under Turkish Competition Law and is functionally linked to the detection of competition-law infringements.
The Constitutional Court highlighted that the Competition 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. The Constitutional Court emphasised that competition-law infringements may arise in diverse and unforeseeable factual circumstances making it impractical for the legislature to regulate all scenarios in detail. As a result, the assessment of whether an on-site inspection is necessary must be carried out in light of the specific circumstances of each case, which the Constitutional Court regarded as a natural consequence of the discretion afforded to the legislator in designing enforcement tools.
On this basis, the Constitutional Court concluded that the phrase “in cases it deems necessary” does not give rise to legal uncertainty and is compatible with Articles 2 and 167 of the Constitution. 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.
Dissenting opinions
The Decision was adopted by majority vote with dissenting opinions of several members of the Constitutional Court. The dissenting judges emphasised that the Board’s on-site inspection powers are inherently linked to the constitutional guarantee of the inviolability of domicile protected under Article 21 of the Constitution, particularly where inspections are carried out at workplaces, management offices and areas not freely accessible to the public.
The dissenting opinions recalled the Constitutional Court’s earlier individual application judgement in the Ford Otosan case, in which the Constitutional Court had expressly classified such areas as “domicile” within the meaning of Article 21 and held that on-site inspections conducted without a prior judicial warrant constituted an interference with this fundamental right. The dissenting opinions noted that the authority to enter workplaces in residential areas, examine records and data, and take samples without a court order amounts to search and seizure activity that must comply with the constitutional safeguards provided for under Article 21. The dissenting judges took the view that the contested provisions of Article 15 should have been assessed primarily under Article 21 of the Constitution, rather than being examined solely in light of the rule of law principle and the state’s obligation to protect competition.
The dissenting opinions further underlined that the wording “in cases it deems necessary” grants the Board a broad margin of discretion and does not limit the exercise of on-site inspection powers to cases where delay would be prejudicial. In their view the absence of objective criteria governing when inspections may be conducted combined with the lack of a general requirement for prior judicial authorisation, raises concerns in terms of legality legal certainty and the prevention of arbitrariness.
In addition, the dissenting judges emphasised that “non-obstruction” of an on-site inspection cannot be regarded as valid consent, given that refusal to cooperate may result in significant administrative fines under Articles 16 and 17 of the Competition Law. Therefore, “consent” given under the threat of such penalties cannot be considered a free expression of will, and the inspection constitutes a search carried out by the exercise of public power.
According to the dissenting opinions, making judicial oversight contingent upon obstruction or the risk of obstruction unduly narrows constitutional safeguards and weakens the protection afforded by Article 21 of the Constitution.
The dissenting opinions also expressed concern that the majority’s approach represents a departure from the reasoning adopted in the Ford Otosan judgment without sufficient justification. While acknowledging that the Constitutional Court may depart from its previous case-law, the dissenting judges stressed that such departures must be supported by clear and reasoned grounds in order to preserve legal certainty and foreseeability. One of the judges emphasised that the majority's failure to review inviolability of domicile under Article 21 of the Constitution and its failure to justify the change in precedent created problems of legal stability and predictability. According to this judge, the majority's approach represents a regression in the protection of fundamental rights and freedoms and is inconsistent with the Constitutional Court's case-law and its function to guarantee fundamental rights and freedoms.
While the Constitutional Court had previously identified a violation of the inviolability of domicile in the Ford Otosan individual application judgment, the present Decision reflects an analytical framework, focusing on the abstract compatibility of the statutory wording with constitutional principles rather than on the specific execution of inspection powers.
Conclusion
With this Decision, the Constitutional Court has confirmed the constitutionality of the Board’s on-site inspection powers under Article 15 of the Competition Law and rejected the annulment request for the contested wording “in cases if deems necessary” in Article 15(1), and dismissed the objection concerning Article 15(3) on procedural grounds (i.e. lack of jurisdiction). While the Constitutional Court had previously found a violation of inviolability of domicile in the context of individual applications, it adopted a more restrained approach in the present constitutional review upon referral, limiting its assessments to Articles 2 and 167 of the Constitution.
As a result of the Decision, the Board's on-site inspection authority regulated in Article 15 of the Competition Law will continue to remain in force in its current form. The Board will be able to conduct inspections at undertakings and associations of undertakings whenever it deems necessary. In the event an on-site inspection is prevented or likely to be prevented, the inspection may be carried out with the decision of a criminal judge of peace.
The 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, undertakings must comply with Competition Law within the framework of competition law compliance programmes and fulfil their legal obligations.
For more information on the Constitutional Court’s Decision and its potential implications for undertakings operating in Türkiye, contact the experts who contributed to this article: alican.babalioglu@ybk-av.com , melis.celik@ybk-av.com , and ezgi.bahar@ybk-av.com.
