“On-site inspection” (dawn raid), one of the most effective and controversial instruments of Turkish competition law practice, has been taken to a new dimension with the Turkish Constitutional Court’s (“Court”) decision published in the Official Gazette dated 17 February 2026.
With its decision dated 6 November 2025 and numbered E.2023/174, K.2025/224, the Court held that the statutory provision enabling the Competition Board (“Board”) to conduct inspections without a prior judicial warrant is constitutional. This ruling has given rise to significant debate in practice, particularly due to the apparent contradiction it creates with the “inviolability of residence-oriented approach the Court adopted in its decision dated 2023 on the individual application by Ford Otomotiv Sanayi A.Ş..
1. Background to the Dispute and Provisions Subject to Annulment Request
Pursuant to Article 15(1) of Law No. 4054 on the Protection of Competition (“Competition Law”), the Board may, in the performance of its assigned duties, conduct inspections at the premises of undertakings and associations of undertakings “in cases it deems necessary.”
Furthermore, the last sentence of the third paragraph of the same article provides that, in the event that the on-site inspection is obstructed or where there exists a likelihood of obstruction, the inspection shall be carried out upon a decision by the judge of the criminal court of peace.
In the objections lodged by the 13th Chamber of the Council of State and the 11th Administrative Court of Ankara, two fundamental elements of Article 15 of the Competition Law were brought under scrutiny on the grounds of alleged unconstitutionality:
- With regard to Article 15(1) of the Competition Law: It was asserted that the phrase limiting the Board’s authority to conduct on-site inspections to “cases it deems necessary” is vague and to arbitrariness.
- With regard to Article 15(3) of the Competition Law: It was maintained that the provision stipulating that a judicial decision is required only where the inspection is obstructed or where there exists a likelihood of obstruction renders constitutional safeguards ineffective.
2. Assessment by the Turkish Constitutional Court
2.1 Application to the Judge of the Criminal Court of Peace in Case of Obstruction of On-Site Inspection
The Court starts with the assessment of the provision contained in the second sentence of the third paragraph of Article 15, which reads: “In the event that the on-site inspection is obstructed or where there exists a likelihood of obstruction, the on-site inspection shall be carried out upon the decision of the criminal peace judge.”
The Court determined that, in the disputes that were the subject of the application, there was no decision by a criminal court of peace based on the grounds for obstruction as provided for in the article and that the relevant provision was not applicable in resolving the disputes. Accordingly, the Court rejected the application concerning this provision on the grounds of lack of jurisdiction.
2.2 With Regard to the Cases Deemed “Necessary” by the Board in the Exercise of its Authority to Conduct On-Site Inspections
The objections subject to the decision were lodged within the scope of Articles 2, 13, and 21 of the Turkish Constitution. However, the Court did not consider the challenged provision to be related to Articles 13 (restriction of fundamental rights and freedoms) and 21 (inviolability of the residence) of the Turkish Constitution, and conducted its review solely within the framework of Article 2 (the principle of the rule of law) and Article 167 (regulation and supervision of markets and foreign trade) of the Turkish Constitution. In its review, the Court considered the following criteria, respectively.
a. Certainty and Foreseeability
First, it was argued that the criterion expressed as “cases deemed necessary” in the exercise of the Board’s on-site inspection authority violates the principle of legal certainty and grants the administration a discretionary power prone to arbitrariness. However, the Court held that this concept does not contain legal uncertainty. In the decision, it was stated that competition violations may arise in many different forms; therefore, it would not be possible for the legislator to enumerate all possible scenarios individually. According to the Court, as the scope of the Board’s inspection authority is already limited to the duties defined by law, this expression does not grant the Board unlimited discretionary power.
b. Positive Obligations of the State (Article 167 of the Turkish Constitution)
Within the scope of the relevant article, the Court stated that this provision imposes on the state the duty, as an obligation, to ensure the healthy functioning of money, credit, capital, goods, and service markets, and to prevent monopolization and cartelization that may arise de facto or through agreements in the markets. Accordingly, while fulfilling this obligation, the legislature retains a margin of discretion regarding the choice of means and procedures, provided that such choice does not contradict the Turkish Constitution.
With respect to the provision subject to annulment request, the Court also held that the regulation is intended to obtain evidence for the detection of anti-competitive conduct, and that the inspection authority granted to the Board remains within the scope of the positive obligations under Article 167 and within the limits of discretionary power.
3. Dissenting Opinions and Criticisms Against the Decision
The Court’s decision dated 6.11.2025 has been heavily criticized both for significantly conflicting with the Court’s previous case law and for the contradictory principles it adopted regarding the protection of fundamental rights and freedoms. Indeed, five members who dissented from the decision also included significant criticisms in their dissenting opinions.
The primary criticism raised by the dissenting members was that the majority incorrectly assessed the legal nature of on-site inspections. The majority did not establish a connection between the relevant provision and the right to inviolability of the residence guaranteed under Article 21 of the Turkish Constitution. However, this approach is in clear contradiction with the established case law of the Court concerning the concept of “residence.” In particular, this approach was strongly criticized due to its complete inconsistency with the Court’s decision dated 2023 in the Ford Otomotiv Sanayi A.Ş. case.
In its decision dated 23.03.2023, in line with its settled case law, the Court explicitly stated that areas within the headquarters and branches of the applicant undertaking (Ford Otomotiv Sanayi A.Ş.) that are not freely accessible to public should be regarded as falling within the scope of “residence.” In this context, the Court concluded that on-site inspections conducted under Article 15 of the Competition Law constituted an interference with the inviolability of the residence, and subsequently examined the relevant provision under Article 21 of the Constitution, determining that the judicial safeguards prescribed in that article were not present in Article 15 of the Competition Law.
In contrast, in its decision dated 06.11.2025, the Court reached a completely opposite conclusion compared to this decision rendered only two years earlier through the individual application procedure, without providing any reasoning explaining why it departed from its previous case law. As emphasized in the dissenting opinions, a supreme court responsible for safeguarding fundamental rights and freedoms violates the right to a reasoned judgment when it abandons its previous approach without providing justification. Such an unexplained change in jurisprudence would not only affect the specific case but would also undermine public confidence in the Constitutional Court, which has the function of providing judicial protection for fundamental rights and freedoms.
4. Our Assessment
Although the Constitutional Court’s decision dated 06.11.2025 preserved the Competition Authority’s inspection powers within the existing legal framework, it created a significant disruption in terms of institutional consistency of case law. The Court’s approach, which characterized a procedure as a “violation of rights” in an individual application but found it constitutionally compliant in abstract norm review, creates legal uncertainty for undertakings.
In particular, the legal validity of consent obtained under the threat of sanctions, as well as the approach whereby judicial safeguard is triggered only in cases of “resistance,” appear difficult to reconcile with the regime of the inviolability of residence safeguarded under Article 21 of the Turkish Constitution. Furthermore, the finding that the matter is not related to the inviolability of the residence is likely to lead to uncertainty regarding the scope and nature of the assessments to be made by the criminal court of peace under Article 15(3)(2) of the Competition Law.