A New Decision of The Constitutional Court on The Turkish Competition Board’s on-site Inspections

One of the most debated issues in Turkish competition law in 2023 was the decision of the Constitutional Court dated 23 March 2023 (Application No. 2019/40991), in which the Court held that the on-site inspection conducted at the premises of Ford Otomotiv Sanayi A.Ş. violated the constitutional right to the immunity of residence due to its unlawfulness.

Following that decision, significant uncertainty arose as to whether the legislature would amend the relevant statutory provision and what impact the ruling would have on subsequent on-site inspections. The decision also triggered extensive discussions regarding both the lawfulness of on-site inspections and the admissibility of evidence obtained during such inspections.

In its decision dated 6 November 2025 (No. 2025/224), published in the Official Gazette on 17 February 2026, the Constitutional Court ruled on an application lodged by the 13th  Chamber of the Council of State and the 11th Administrative Court of Ankara seeking the annulment of certain provisions of Article 15 of Law No. 4054 on the Protection of Competition, which regulates on-site inspections. The application challenged the phrase “where it deems necessary…” contained in the first paragraph of Article 15; and the provision in the third paragraph stipulating that “In cases where the on-site inspection is obstructed or where there is a likelihood of obstruction, the inspection shall be carried out upon the decision of a criminal judgeship of peace.” The Constitutional Court rejected the request for annulment and, by majority vote, held that the authority of the Competition Board to conduct on-site inspections at undertakings “where it deems necessary” is not unconstitutional.

With this ruling, the power of on-site inspection—one of the most critical investigative tools in competition law enforcement—has once again come to the forefront. In particular, the divergence in reasoning between this recent decision and the earlier Ford judgment raises serious constitutional concerns regarding the limits of competition investigations.

With this decision, the power of on-site inspection - one of the most critical enforcement tools in competition law practice - has once again come to the forefront. In particular, the divergence in approach between the Court’s earlier Ford decision and this recent ruling raises serious questions regarding the constitutional limits of competition investigations.

In its recent decision, the Constitutional Court emphasized that the protection of competition and the prevention of cartelization fall within the State’s constitutional obligations; that the power to conduct on-site inspections serves a legitimate public interest; that the procedure and scope of such inspections are sufficiently defined by statute; and that there is no violation of the principle of the rule of law. In doing so, the Court adopted an approach that prioritizes the effectiveness of evidence-gathering in competition investigations.

What renders this decision controversial, however, is the profound divergence from another judgment delivered by the Court on the very same issue in the recent past. As will be recalled, in the Ford Otomotiv decision, the Court held that on-site inspections carried out at business premises may, under certain circumstances, fall within the scope of the constitutional protection of domicile, and that the exercise of the inspection power should be subject to prior judicial authorization and accompanied by robust constitutional safeguards.

In the present decision, the Court reasoned that the scope and procedure of on-site inspections are regulated by law, that inspections are conducted on the basis of an authorization certificate, and that the Board’s investigative powers are not unlimited. Accordingly, the majority concluded that the principle of legal certainty was not violated. While acknowledging that a balance must be struck between the protection of competition and fundamental rights, the majority found that the contested provisions did not disturb this balance. Five members of the Court dissented from the majority opinion.

The dissenting opinions of the members who did not join the majority are particularly noteworthy in the following respects:

• Certain areas within business premises - such as sections where managerial functions are carried out and offices not freely accessible to the public - should be regarded as falling within the sphere of private life and thus protected under the constitutional guarantee of the inviolability of domicile.
• Broadly worded expressions such as “where the Board deems necessary” confer excessive discretion and leave the limits of state interference insufficiently defined.
• The conditions for intervention are not tied to objective criteria; the scope of administrative discretion is extensive; judicial review remains limited; and situations requiring urgent intervention are not clearly defined.
• Treating the absence of obstruction by undertakings as constituting consent does not reflect reality, given that obstruction of an on-site inspection is subject to severe administrative sanctions; acceptance given under such coercive circumstances cannot be regarded as a free expression of will.
• The new ruling is incompatible with the constitutional safeguards articulated in the Ford judgment.
• The Court’s reaching divergent conclusions on the same issue within a short period of time may undermine legal certainty and foreseeability.

Indeed, one of the dissenting members expressly characterized this development as a “significant regression.” In practice, notwithstanding the Constitutional Court’s 2023 decision, the Competition Board had continued to conduct on-site inspections without obtaining prior authorization from a criminal judgeship of peace. Accordingly, the new ruling may be regarded as effectively legitimizing the existing enforcement practice. This latest decision of the Constitutional Court appears poised to revive a fundamental question: Should the effective protection of competition prevail, or should constitutional safeguards of fundamental rights take precedence? Or must the legal order once again recalibrate the balance between these two competing values?