Turkey: The Board Imposed A Fine On Mosaş Akıllı Ulaşım Sistemleri AŞ. For Hindering An Onsite Inspection

The Board recently published its reasoned decision concerning Mosaş Akıllı Ulaşım Sistemleri A.Ş. ("Mosaş") for hindering the on-site inspection conducted by the officials of the Competition Authority ("Authority") on June 5, 2018, at the premises of Mosaş.¹

Pursuant to the preliminary investigation launched upon the Board's decision regarding the signalization market², an on-site inspection was carried out on June 5,2018, at Mosaş's premises in Konya. The Board, whilst summarizing the events that occurred during the on-site investigation, stated that the case handlers had presented their authorization for the on-site inspection and furnished their official identification cards, informed the Mosa§ personnel about the preliminary investigation, and stated that, in accordance with the preliminary investigation, an on-site inspection would be carried out at the premises.

The Board determined that internet access had been disconnected twice while the onsite inspection was being carried out. Following the disconnections, a case handler noticed that the e-mails under review were being deleted by Mosa§ personnel. As this situation was being investigated, another case handler noticed that a Mosa§ employee was communicating about the undertaking through an online chat group. The case handlers requested and obtained the phone used for this communication, and also observed that the online conversations were displayed on the computer of the employee in question.

During the examination of the relevant online conversations, it was ascertained that (i) photographs of the Authority officials were being shared through the chat group with Mosa§ employees, and (ii) Mosa§ employees were being instructed to "disconnect the internet so they cannot gain access," "break the modem device," and "erase e-mails." The Authority officials took screenshots of these conversations.

The Board further explained in its decision that, as the officials from the Authority were taking these screenshots, a senior Mosa§ employee and one of its lawyers arrived onsite. They informed the case handlers that they would hold a meeting to assess whether allowing the on-site inspection to continue would be in Mosa§'s best interests, and that they may decide to halt or discontinue the onsite inspection. According to the Board, following this conversation, as the Authority officials were taking screenshots showing that the e-mail messages under review were being deleted, there was a power outage at the inspection site. After a while, despite electricity being restored, the internet connection could not be sustained or repaired. Mosa§ personnel stated that they had requested assistance from the internet service provider, Turk Telekom, to restore the internet connection. The Authority requested information from Tiirk Telekom to verify this claim; however, Tiirk Telekom did not have any records indicating that they had received such a request from Mosa§, nor of a systematic internet connection failure in the area where Mosa§ is located.

Additionally, the Board stated that, despite being repeatedly informed of the penalties for obstructing an on-site inspection by the Authority officials, Mosa§ representatives continued to prevent the Authority officials from implementing inspection procedures and carrying out their duties. Furthermore, the computer system units that had been previously examined by the Authority officials were seized by a Mosa§ representative, which ultimately prevented the completion of the inspection. In addition, Mosa§ did not allow the Authority officials to print or copy the gathered information on external hard drives, despite being warned about the potential repercussions of such obstruction for Mosa§. Following the negotiations between Authority officials and Mosa§ personnel, the Authority officials were allowed to copy the relevant documents, during which Mosa§ personnel recorded the process on video. Mosa§ personnel also refrained from signing the affidavit documenting the hindrance and obstruction of the on-site inspection.

In this respect, the Board declared that, since on-site inspections are one of the most significant and useful tools for determining whether the Law No. 4054 on the Protection of Competition ("Law No. 4054") has been infringed, on-site inspections must be exercised efficiently and effectively in order to attain beneficial results. The Board also noted that, pursuant to Article 15 of the Law No. 4054, hindering or obstructing an on-site inspection triggers an administrative monetary fine.

Based on the foregoing information, the Board concluded that Mosaş had hindered the onsite inspection process, and thus, pursuant to Article 16(l)(d) of the Law No. 4054, ruled that an administrative monetary fine of TL 81,500.87 should be imposed on Mosaş (the amount was calculated at the rate of 5/1000 of Mosaş's gross revenues generated in its 2017 financial year).

In addition, the Board imposed an administrative monetary fine of TL 8,150.09 (corresponding to 5/10000 of its gross revenues for 2017), pursuant to Article 17 of the Law No. 4054, for every day that Mosaş refrained from inviting the Authority to conduct the on-site inspection and thus ending the violation.

Footnotes

1  The Board's decision dated June 21,2018 and numbered 18-20/356-176

2 The Board's decision dated March 8,2018, and numbered 18-07/124-M.

This article was first published in Legal Insights Quarterly by ELIG Gürkaynak Attorneys-at-Law in December 2018. A link to the full Legal Insight Quarterly may be found here.

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