The Board published its reasoned decision1 through which it decided that Siemens Healthcare Sağlık A.Ş. ("Siemens Healthcare") has hindered and obstructed the on-site inspection conducted at its premises on October 2, 2019. The specifics of the case file are provided below.
Within the scope of the preliminary investigation2, the case handlers of the Competition Authority decided to conduct an on-site inspection, during which they examined the offices and computers of certain employees.
Simultaneously, the case handlers requested to conduct an electronic review based on a keyword-based search and specific time period, which would cover all of Siemens Healthcare employees. When they inquired how the relevant review could be conducted, the information technology supervisors responded that the application utilized within the entity is Microsoft Office 365 ("O365") and that the case handlers would have to refer to the global headquarters should they wish to be informed on the methods to conduct the review in question. Siemens Healthcare representatives further added that the respective review could be conducted via the "eDiscovery" feature of the O365 application, and certain permissions to use this feature must be granted at a global level.
Subsequently, the case handlers requested access to the respective feature solely for the purpose of their review covering employees within Turkey. The case handlers made it clear that (i) the review would be limited to "Siemens Healtcare" users, and (ii) the undertaking's representatives can be present during the review in order to eliminate any potential legal concerns. However, they were not granted access since the headquarters responded that such review would be translated into an access granted for the entirety of the employees' information within the EU and this may, in turn, give rise to different legal risks in certain other jurisdictions. Thereby, the case handlers were not granted access and therefore could not conduct the e-Discovery review.
Siemens Healthcare also indicated that in order not to give rise to an unlawful conduct in another jurisdiction, should the case handlers provide the relevant person to be reviewed, the date and the search parameters, they would be willing to prepare the relevant information and submit it for the Competition Authority's review. At that stage, the case handlers reminded their authorities granted by the Law No. 4054, and informed the undertaking's representatives that the on-site inspection cannot be conducted under these circumstances and all of the above would be recorded on the official on-site inspection report.
Successively, the undertaking has submitted a petition to the records of the Competition Authority, indicating that the "immediate" access to the requested database could not be granted at the time of the on-site inspection, since it is not possible to limit the scope of the review solely with the employees in Turkey due to the global informatics infrastructure. Therefore, complying with the relevant request would have resulted in a breach of various safety protocols, contractual obligations, intellectual property matters and last but not least, of the data protection laws in force within the European Union, United States of the America and rest of the world.
In addition, the undertaking added that it is exploring further methods to comply with the Competition Authority's request and submitted certain proposals to grant full review access – limited with the employees in Turkey – to the Competition Authority. Thereon, based on the respective set of solutions, the case handlers conducted another on-site inspection on October 15, 2019 at the undertaking's premises.
In its decision, the Board indicated that the fact that the system has not been altered between the first and second on-site inspections can be corroborated. However, since the "eDiscovery" feature allows the review of the e-mails categorized under "hard delete" up to 30 days before October 2, 2019, the case handlers have found that the review conducted during the second on-site inspect –during which they were granted access to the system– covers a shorter period when compared to the first on-site inspection. Therefore, the Board concluded that it is not possible to consider the data gathered during the two on-site inspections as one and the same. The Board also indicated that during the initial on-site inspection, the representatives of the undertaking also gained access to the keywords typed in by the case handlers, and therefore, the undertaking has had a chance to conduct its own keyword search via the "eDiscovery" feature.
The Board recalled that refraining from hindering and/or obstructing the on-site inspection does not only mean that the investigated undertaking should submit solely the information and documents which it grants access to, within the time frame and manner it sees suitable; but also encompasses the inspection to be conducted at the undertaking's premises on the date, scope and within the units that the Competition Authority considers as necessary.
In light of the foregoing, the Board decided that Siemens Healthcare has indeed hindered and obstructed the on-site inspection and imposed an administrative monetary fine on the undertaking pursuant to Articles 16(1)(d) and 17 of Law No. 4054, which includes (i) the administrative monetary fines at the rate of 0.5% of Siemens Healthcare's 2018 Turkish turnover for hindering the on-site inspection, and (ii) a proportional administrative monetary fine at the rate of 0.05% of Siemens Healthcare's 2018 Turkish turnover; starting from the day following October 2, 2019 on which the relevant conduct is deemed to have taken place, for each day that the violation continued until October 15, 2019, when Siemens Healthcare invited the Authority for another on-site inspection.
This article was first published in Legal Insights Quarterly by ELIG Gürkaynak Attorneys-at-Law in June 2020. A link to the full Legal Insight Quarterly may be found here
1 The Board's decision dated November 7, 2019, and numbered 19-38/581-247.
2 The preliminary investigation has been initiated based on the Board's decision dated February 7, 2019 and numbered 19-06/55-M
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.