Is There A Shift From A Formalistic Approach To Data Deletion During The Turkish Competition Authority's On-Site Inspections Towards An Objective-Based Proportionality Assessment?

Through the end of 2025, the Turkish Competition Authority's ("TCA") decision concerning the obstruction of an on-site inspection in the Samsung Electronics İstanbul Pazarlama ve Ticaret Ltd. Şti. ("Samsung") Decision¹ reasonably gave rise to the question of whether there has been a change in the approach to the assessment of data deletion practices under Turkish competition law procedure. According to the TCA's established case law, the deletion of data after the commencement of an on-site inspection has been considered as conduct that hinders or obstructs the inspection, regardless of the accessibility, content, or relevance of the deleted data, and has accordingly resulted in administrative fines.

While this established approach had generally been deemed lawful by the administrative courts, the decision of Ankara 2nd Administrative Court dated 15 April 2022 and numbered 2022/254 E. in Sahibinden.com case brought forward significant criticisms against the TCA's conclusion for obstruction of the on-site inspection² and suggested a set of criteria that the TCA should have taken into account when determining obstruction of an on-site inspection. The Administrative Court emphasized that, even where data deletion is detected during an on-site inspection, factors such as whether the undertaking warned its employees, whether the deleted e-mail correspondence could be accessed through other channels, and whether the deleted but subsequently accessed correspondence indicates an infringement should be taken into consideration.

Although the debates initiated during the judicial review following the Sahibinden.com decision did not find significant response at the TCA and it continued to maintain its formalistic assessment approach regarding data deletion, certain decisions rendered in 2023 demonstrated that the strict and formalistic approach to obstruction of on-site inspections was also questioned by certain Board members. With Balsu Gıda Sanayi ve Ticaret A.Ş.³ ("Balsu") and Koyuncu Elektronik Bilgi İşlem Sistemleri Sanayi ve Dış Ticaret A.Ş.⁴ ("Koyuncu Elektrik") decisions issued in 2023, certain signals indicating potential flexibility in the TCA's strict and formalistic approach regarding data deletion constituting obstruction of an on-site inspection were sent. In particular, the dissenting opinions of the Koyuncu Elektronik decision, which was adopted by a majority vote, proposed a alternative set of criteria and emphasized that the TCA's approach towards obstruction of on-site inspections should change depending on whether the investigation concerns cartel-type infringements. By the end of 2025, following changes in the TCA's composition and the shift of this minority reasoning into the majority, the Samsung decision reflected a considerably more tolerant outcome with respect to data deletion during on-site inspections than had been observed in recent years.

For this reason, in this article, we examine the TCA's on-site inspection powers, its established case law on the obstruction or hindrance of on-site inspections, and recent signals of a shift in jurisprudence, and assess whether these signals point to a permanent change in approach.

The Turkish Competition Authority's Inspection Powers

Pursuant to Article 15 of the Law No. 4054 on Protection of Competition ("Turkish Competition Act"), the TCA is authorized to conduct "on-site inspections" at undertakings in all cases it deems necessary for the purpose of detecting competition law infringements. This authority provides a broad scope of powers including the examination of all kinds of books, documents, physical and electronic data and communication records of undertakings; obtaining written and oral statements; where necessary, the copying and back-up of information systems.

This broad scope of authority also constitutes the basis of the TCA's supervision and evidence collection capacity and is essential for the prompt detection of competition law infringements and the effective enforcement of sanctions. In particular, the fact that communication evidence plays a leading role in the detection of cartel-type competition law infringements significantly complicates the detection of infringement in cases where the on-site inspection authority loses its effectiveness. For this reason, on-site inspections must be conducted suddenly and without prior notice, and in a manner that preserves data integrity. In this context, actions such as actual obstruction of the evidence investigation for infringement findings, as well as compromising the integrity of the data set to be examined, destroying or manipulating its content, or making access to data difficult, are considered as obstruction of on-site inspection and are subject to administrative fines pursuant to Articles 16 and 17 of the Turkish Competition Act.

As the Turkish Competition Act does not explicitly define the circumstances under which an on-site inspection is deemed to have been obstructed or hindered, the primary guiding legal source in this area is the TCA's decisions. A review of previous TCA decisions indicates that certain forms of conduct have traditionally been regarded as obstructive. These include refusing to allow the TCA's case handlers to carry out an on-site inspection upon arrival at the undertaking's premises; failing to provide devices requested by the case handlers; restricting access to platforms used by employees for work-related communications; delaying the commencement of the inspection; compromising the integrity of inspection devices; and destroying physical documents. However, over time, as competition law awareness within undertakings has increased and digital evidence has become more central to infringement findings, such traditional obstructive behaviors have decreased in number, and have been replaced by deletion, manipulation, or corruption of data in digital environments.

In this respect, the most frequently encountered form of obstruction in recent years is the creation of a panic atmosphere among employees when the TCA's case handlers arrive for an on-site inspection, and the deletion of certain documents and correspondence from the digital environment as a sudden reflex or due to group psychology.

The Turkish Competition Authority's Established Case Law on Data Deletion

According to the TCA's established case law, the deletion of any data after the commencement of an on-site inspection is deemed to constitute conduct that obstructs or hinders the inspection, regardless of its nature or scope.

In short, the TCA proceeds almost through a formal formula such as "data deletion = infringement". circumstances such as subsequent access to the deleted data from alternative sources, the absence of incriminating content, the lack of relevance to the subject matter of the investigation, or the fact that the deletion was carried out without management's knowledge do not eliminate the unlawfulness. Moreover, the TCA has stated that the recovery of deleted data by the undertaking or through the Authority's forensic IT tools is not decisive for the obstruction assessment. The TCA has emphasised that undetected deletion actions could otherwise result in a de facto "rewarding" effect for undertakings, undermining the effectiveness of on-site inspections. For this reason, even if the data has been subsequently recovered, it is considered that an infringement has occurred. Indeed, in TCA decisions, even the additional time spent accessing data due to deletion has been considered as hindering an on-site inspection.

Within this framework, the TCA applied an extremely strict standard regarding undertakings' obligation to promptly inform employees of the on-site inspection and to safeguard data integrity from the moment the inspection is initiated. However, recently, some indications have begun to emerge that this strict approach is becoming more flexible.

The Competition TCA's Balsu Decision: Opening the Door for Non-Investigated Undertakings

The TCA conducted an on-site inspection at Balsu, a supplier of Ferrero, within the scope of the investigation carried out against Ferrero Fındık İthalat İhracat ve Ticaret A.Ş. ("Ferrero") on 27.04.2023, and determined that approximately 1,500 e-mail messages were deleted from the computer of Balsu's sales manager during the on-site inspection.

However, all deleted e-mails were recovered and examined through the "Recover Deleted Items" option, and it was assessed that the deleted data did not raise any competition law infringement concern. The TCA also considered that Balsu was not a party to the TCA's investigation against Ferrero and therefore could not have had any motivation to conceal evidence, and decided by a majority vote that there was no need to impose a monetary fine against Balsu for obstruction or hindrance of the on-site inspection.

This decision took its place in the legal community as a significant exception to the long-applied "data deletion = infringement" formula. Although in the dissenting opinion written by the members who did not agree with the TCA's decision, it was argued by referring to both administrative court decisions and TCA decisions that this formula should continue to be applied exactly as in the previous practice and that the recovery of deleted data or the fact that its content does not constitute an infringement should not change the result, the Board majority made an exceptional assessment by taking into account the circumstances of the concrete case.

While the decision explains that the TCA's assessment rested on the absence of any apparent incentive for Balsu—as a non-party to the investigation—to conceal evidence, as well as on the lack of infringement-related findings in the recovered correspondence, the decision does not articulate any explicit reasoning as to why the established case law was departed from. In particular, it remains unclear on what legal basis the TCA treated subsequent access to deleted data as a factor capable of neutralising the unlawfulness of the deletion in the circumstances of the case.

Notwithstanding this lack of detailed reasoning, the decision is nevertheless significant in that it opens an important line of defence for undertakings that are not parties to an investigation but are subject to on-site inspections as third parties.

The Competition TCA's Koyuncu Elektrik Decision

In Koyuncu Elektrik decision, the TCA essentially adopted an approach in line with its established case law, embraced the "data deletion = infringement" formula, and imposed an administrative fine for obstruction of the on-site inspection regardless of the recovery or content of the deleted data. However, Koyuncu Elektrik decision was taken by a 4 to 3 majority and was criticized by the Board members who were in the minority at that time through a detailed dissenting opinion. This dissenting opinion was considered important in terms of providing advance signals for the Samsung decision issued in 2025.

In the dissenting opinion of the 3 Board members opposing the Koyuncu Elektrik decision, a distinction was drawn between cartel and non-cartel on-site inspection files, and it was stated that in non-cartel cases the TCA's discretion should be exercised by collectively considering factors such as: (i) the scale and competition law history of the undertaking, (ii) the magnitude of the potential infringement, (iii) the sequence of events, (iv) the recovery status and content of the deleted data, (v) the cost of recovery, and (vi) the context of the inspection.

The rationale for these evaluation criteria was explained by reference to behavioural dynamics observed at the individual level, particularly within small and medium-sized enterprises that lack competition law compliance programs. In contrast to cartel investigations where the concealment of evidence is generally deliberate and systematic, such undertakings which are not suspected to a cartel agreement may still display panic-driven, reflexive, and reactive behaviour. Consequently, data deletion may occur for personal reasons, rather than with the intention of concealing evidence or obstructing the investigation.

In the dissenting opinion, it was stated that failing to make this contextual assessment in non-cartel files would create a risk of excessive punishment, and that over time, as competition law awareness increases in small and medium-sized undertakings, the inspection environment would naturally become stable.

In summary, the dissenting opinion concluded that a contextual assessment should be conducted instead of adhering to the "data deletion = infringement" formula.

The TCA's Most Recent Decision: Samsung Decision

The Samsung decision constitutes the most recent and concrete indication of a potential shift in the TCA's assessment of obstruction of on-site inspections arising from data deletion. This time, while 4 Board members concluded that there was no infringement, 3 Board members set out their reasoning for finding an infringement in dissenting opinions.

The TCA conducted an on-site inspection at Samsung within the scope of the preliminary investigation⁵, and determined that some undertaking employees left business groups on "Knox Teams", an internal corporate messaging application developed and used by Samsung, during the on-site inspection. The Authority further established that, due to the technical design of the Knox Teams application, group content was automatically deleted when users exited the relevant groups, and characterised this conduct as data deletion.

In its defence, Samsung argued that the employees exited the groups prior to being informed of the commencement of the on-site inspection and were therefore unaware of the inspection at the relevant time, precluding any intent to hinder the inspection or delete data. Additionally, Samsung argued that leaving internal communication groups alone could not be considered data deletion, as all correspondence could be accessed from the devices of other group members. Samsung further submitted visual evidence demonstrating that such groups are typically created for specific purposes and that employees usually leave the groups once the purpose has been fulfilled.

In its assessment, the TCA departed from its established case law and attached determinative weight to two factors: the accessibility of the correspondence from other employees' devices and the absence of any infringement-related content. On this basis, the Board concluded by majority vote that the on-site inspection had neither been obstructed nor hindered.

This time, the 3 Board members who had previously constituted the majority but remained in the minority in the Samsung decision referred to the TCA's and administrative courts' established approach and stated that the re-accessibility of deleted data and the absence of inspection-related content in the correspondence were not determinative for the infringement assessment, and that obstruction or hindrance should be found regardless of these factors. They also emphasized that the obligation to inform employees of the on-site inspection and to preserve data integrity rested with Samsung. The core legal argument in the dissent was that the Samsung case did not differ from previously sanctioned conduct and therefore did not justify a departure from established case law. Indeed, the reasoned decision did not provide any justification as to why, contrary to its established case law, the TCA attributed significance to subsequent access to deleted correspondence and to whether the content indicated an infringement.

It should be underlined that the Board members who authored the dissenting opinion in Koyuncu Elektrik decision formed the majority view in the Samsung decision. However, it must also be noted that the assessment framework set out in the Koyuncu Elektrik dissent was not explicitly applied in the Samsung decision. In other words, no distinction was made between cartel and non-cartel infringements based on the subject of the investigation, and the elements proposed to prevent excessive punishment in Koyuncu Elektrik dissent were not evaluated. Accordingly, it would be premature to conclude that the dissenting opinion in the Koyuncu Elektrik decision now reflects the TCA's dominant approach. Rather, in the Samsung decision, the TCA emphasized two elements to which it had not previously attributed regular decisive value:

1. Access to the deleted data, and
2. The absence of any infringement findings in the deleted but subsequently accessed data.

From this perspective, if an analogical analysis were to be conducted, it could be argued that the Samsung decision converges toward the Sahibinden.com decision rendered by Ankara 2nd Administrative Court in 2021. However, it should also be noted that the concrete characteristics of the two cases are not similar.

Against this background, and on the basis of the available material, the Samsung decision is more accurately characterised as an exceptional assessment rather than a clear doctrinal shift.

Conclusion

When assessed collectively, recent decisions indicate potential signals of a shift in the TCA's approach to data deletion during on-site inspections. However, these signals have not yet been translated into a coherent set of objective and consistently applied assessment criteria. Therefore, within the scope of their supervisory obligation to inform employees about on-site inspections and to preserve data integrity, undertakings must provide full and active support to the TCA's case handlers conducting the inspection and take necessary actions to enhance their employees' competition law awareness.

The signals suggesting that the TCA is moving away from a strict approach should not be assumed to create a "comfort zone" for undertakings. On the contrary, as demonstrated in Samsung decision, the divergence of views between the Board majority and dissenting opinions shows that legal certainty has not yet been fully achieved. Indeed, neither Koyuncu Elektrik nor the Samsung decisions provide a clear guideline that undertakings can safely rely.

For this reason, companies are well advised to proactively review and reinforce their internal processes, taking into account that any data deletion occurring during an on-site inspection could trigger investigation and enforcement risks.

Footnotes

1. TCA's Samsung Decision dated 10.04.2025 and numbered 25-14/330-157

2. TCA's Sahibinden Decision dated 27.05.2021 and numbered 21-27/354-174

3. TCA's Balsu Decision dated 17.08.2023 and numbered 23-39/727-250

4. TCA's Koyuncu Elektrik Decision dated 21.09.2023 and numbered 23-45/839-295

5. TCA's decision dated 27.02.2025 and numbered 25-08/184-M(2)

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