1. Introduction

The constitutionality of the on-site inspection powers conferred upon the Competition Board (‘Board’) pursuant to Article 15 of Law No. 4054 on the Protection of Competition (‘Law No. 4054’) was once again brought before the Turkish Constitutional Court (‘Court’). In its ruling[i] published in the Official Gazette dated 17 February 2026 and numbered 33171 (‘Ruling’), the Court arrived at a different conclusion from its earlier assessment.

In an earlier development, in its Ford Otosan judgment dated 23 March 2023 and numbered 2019/40991, delivered upon an individual application, the Court examined the Board’s on-site inspection powers and concluded that the relevant provisions infringed the applicant’s right to the inviolability of domicile.

By contrast, in the Ruling under examination, the Court took a divergent approach in the objection applications lodged by the 13th Chamber of the Council of State and the 11th Administrative Court of Ankara (‘Referring Courts’) seeking the annulment of the relevant provision, and held that the provision governing the Board’s on-site inspection powers is in conformity with the Constitution.

This article analyses: (i) the provision subject to the Ruling and the grounds for the annulment request; (ii) the Court’s assessment concerning the question of the ‘applicable rule’; (iii) the constitutional review conducted by the Court; and (iv) the dissenting opinions accompanying the Ruling.

2. The Contested Provision and the Grounds for the Annulment Request

Article 15 of Law No. 4054 governs the Board’s authority to conduct on-site inspections. Accordingly, the Board may carry out inspections at undertakings and associations of undertakings where it considers it necessary to fulfil the duties assigned to it pursuant to Law No. 4054. Moreover, where the on-site inspection is obstructed or there is a likelihood of obstruction, the inspection may be carried out upon a determination of the criminal judgeship of peace.

In the context of proceedings instituted for the annulment of administrative fines imposed by the Board, the Referring Courts concluded that (i) the phrase ‘where it deems necessary’ and (ii) the sentence ‘In the event that the on-site inspection is obstructed or there is a likelihood of obstruction, the inspection shall be carried out pursuant to a determination of the criminal judgeship of peace’—both contained in the provision governing the Board’s on-site inspection powers—were unconstitutional. Accordingly, the Referring Courts applied to the Court for the annulment of the aforementioned parts of Article 15 of Law No. 4054.

In essence, the Referring Courts maintained that the challenged provision does not confine the Board’s on-site inspection powers to situations where urgency arises owing to the risk of delay, nor does it impose an obligation to submit such determinations for approval by a competent judge within twenty-four hours. On that basis, it was contended that the provision is contrary to Articles 2 (the principle of the rule of law), 13 (restriction of fundamental rights and freedoms), and 21 (inviolability of domicile) of the Constitution.

3. The Issue of the ‘Applicable Rule’

The Court began its analysis by examining whether the contested provisions satisfied the definition of ‘applicable rules’ within the meaning of constitutional review.

Pursuant to Article 152 of the Constitution and Article 40 of Law No. 6216 on the Establishment and Rules of Procedure of the Court, a court seized of a case may apply to the Court for the annulment of a statutory provision if it considers that provision to be contrary to the Constitution, or finds the claim of unconstitutionality raised by a party to be well-founded.

However, as also emphasized by the Court, pursuant to the aforementioned provisions, for a court to apply to the Court: (i) there must be a case duly filed that falls within its jurisdiction; and (ii) the rule the annulment of which is sought must constitute a rule applicable to that case. In this context, an ‘applicable rule’ refers to provisions that are capable of being applied in resolving disputes arising at different stages of the proceedings or that may directly affect the outcome of the case.

In the present matter, the Court observed that the cases pending before the Referring Courts concerned actions for the annulment of administrative fines imposed on undertakings and that, in the circumstances underlying those cases, no determination of a criminal judgeship of peace had been issued on the grounds that the on-site inspection had been obstructed or that there was a likelihood of obstruction.

Accordingly, the Court concluded that the rule providing that ‘In the event that the on-site inspection is obstructed or there is a likelihood of obstruction, the inspection shall be carried out pursuant to a determination of the criminal judgeship of peace’ was not a provision capable of having a positive or negative bearing on the resolution or outcome of the cases.

On that basis, the Court held that the relevant part of the application should be rejected, on the grounds that the rule in question was not capable of application in the cases pending before the Referring Courts.

4. The Issue of Constitutionality

The Court reviewed the part of the objection concerning the phrase ‘where it deems necessary’ primarily by reference to Article 2 of the Constitution (the principle of the rule of law) and Article 167 (the regulation of markets and foreign trade). The Court determined, however, that the contested rule did not fall within the scope of Articles 13 and 21 of the Constitution.

In this context, the Court first underlined that one of the foundational elements of the rule of law is the principle of legal certainty. Pursuant to this principle, statutory provisions must be clear, precise, comprehensible, practicable, and objective in a manner that leaves no room for hesitation or doubt for both individuals and the administration. Furthermore, they must incorporate safeguards protecting against arbitrary conduct by public authorities.

The challenged provision empowers the Board to carry out on-site inspections at undertakings where considered necessary, whilst expressly confining this power to the performance of the duties assigned pursuant to Law No. 4054. It stipulates that inspections shall be conducted by Board experts upon presentation of an authorisation certificate specifying the subject and purpose of the inspection.

The provision further clarifies that, where an inspection is obstructed or there is a risk of obstruction, it may proceed solely on the basis of a determination by a criminal judgeship of peace, and that the Board is not authorised to employ coercive force on its own initiative.

In its analysis, the Court observed that the need for on-site inspections may arise in varying circumstances as the Board performs its duties pursuant to Law No. 4054, and that the legislature is therefore not required to exhaustively enumerate all situations requiring such inspections. The existence of circumstances rendering an inspection necessary should instead be assessed having regard to the specific conditions of each case.

Accordingly, the Court concluded that the scope of the Board’s on-site inspection powers and the circumstances pursuant to which they may be exercised are governed with sufficient clarity, such that the provision cannot be regarded as ambiguous.

Moreover, the Court stated that the contested provision was enacted to facilitate the gathering of evidence for the detection of anti-competitive conduct and practices within the scope of the State’s obligation pursuant to Article 167 of the Constitution to ensure the sound and orderly functioning of markets and to prevent monopolisation and cartelisation that may arise either legally or de facto. Having regard to the legislature’s discretion in determining the instruments and methods to be employed in preventing monopolisation and cartelisation in markets, and to the absence of any constitutional mandate prescribing a specific method, the Court concluded that granting the Board the authority to conduct on-site inspections where it considers it necessary does not conflict with the State’s positive obligation arising from Article 167.

Consequently, the Court resolved, by majority vote, to dismiss the request for annulment on the grounds that the contested provision is not contrary to Articles 2 and 167 of the Constitution.

5. Dissenting Opinions

The Ruling, adopted by majority vote, contains a substantial number of dissenting opinions setting out important evaluations. These dissenting opinions principally relate to: (i) the infringement of the inviolability of domicile; (ii) the restriction of fundamental rights and freedoms; and (iii) the question of the applicable rule.

In several dissenting opinions, it is emphasized that, in the established case law of the Court, the parts of workplaces that are not open to the general public are considered to bear the character of a ‘domicile’. Accordingly, it is maintained that the exercise of on-site inspection powers constitutes an interference with the inviolability of domicile and falls within the protections afforded by Article 21 of the Constitution. In this respect, the Court’s failure to assess the contested provisions by reference to Article 21 was considered to be in error.

Indeed, pursuant to Article 21 of the Constitution, no one’s domicile may, as a rule, be entered without a judicial decision. However, only where delay would be prejudicial may an exception be made to this rule by way of a written order from an authority empowered by law, and such order must be submitted for judicial approval within twenty-four hours. Notwithstanding this express constitutional provision, confining the requirement of a determination by the criminal judgeship of peace solely to cases where obstruction is likely narrows the scope of the protection afforded by Article 21 and thereby constitutes an infringement of the Constitution.

Moreover, the dissenting opinions take issue with the Ruling for being irreconcilable with the Court’s recent Ford Otosan judgment. In this respect, it is observed that arriving at divergent conclusions in individual application proceedings and constitutional review proceedings on the same question within a short period of time, without providing a reasonable justification, gives rise to serious concerns in terms of the principles of legal certainty and predictability.

A further significant matter in the dissenting opinions concerns the bounds of the interference with fundamental rights and freedoms arising from the contested provision. In this context, it is maintained that the phrase ‘where it deems necessary’ leaves the scope and conditions of interference with fundamental rights entirely to the Board’s discretion. It is further observed that the phrase does not define situations where delay would be prejudicial, does not establish any objective criteria, and does not clearly and foreseeably prescribe in which cases a judicial determination would be required. Accordingly, it is contended that the contested provision does not satisfy the principles of legality, legal certainty, and the prevention of arbitrariness as safeguarded pursuant to Article 13 of the Constitution.

It is further maintained that excluding from review, on the ground that it did not constitute an ‘applicable rule’, the provision requiring a determination of the criminal judgeship of peace where an undertaking obstructs an on-site inspection or where there is a likelihood of such obstruction is not warranted. That provision forms an integral part of the legal framework governing interference with the inviolability of domicile and is capable of being applied in the present matter. Accordingly, it is observed that the majority’s determination to leave this provision outside the scope of review is likewise incompatible with the Court’s established criterion of the ‘applicable rule’.

6. Conclusion

In the Ruling, the Court departed from the approach it took in the Ford Otosan judgment and concluded that the Board’s power to conduct on-site inspections is compatible with the Constitution.

In this context, the Court held that the provision in Article 15 of Law No. 4054 governing the Board’s on-site inspection powers is consistent with the principle of the rule of law and the objective of ensuring effective oversight of markets.

Nevertheless, the dissenting opinions contend that the Ruling fails to give adequate weight to the constitutional guarantees concerning the inviolability of domicile and the restriction of fundamental rights and freedoms.

Be that as it may, it may be said that the Ruling has, at least for the time being, put to rest the debates surrounding the Board’s on-site inspection powers that had gathered momentum following the Ford Otosan judgment.

[i] Decision of the Constitutional Court dated 06.11.2025 and numbered File: 2023/174, Decision: 2025/224.