On June 14, 2017, the Ankara Regional Administrative Court's 7th Administrative Chamber ("Regional Court") rendered a decision stating that telecommunications operators must be warned regarding an infringement before an administrative fine is imposed on them. This is a landmark decision for the electronic communications sector, as the underlying legislation does not set forth a warning procedure as a prerequisite for an administrative fine, but rather provides it as an optional measure (i.e., an additional tool) for the Information and Communication Technologies Authority ("ICTA").
The case before the Regional Court was related to an administrative fine of TL 35,406.09 issued by the ICTA to a certain telecommunications operator, due to the operator's violation of Article 29 of the Regulation on Network and Information Security in the Electronic Communications Sector ("Regulation"), which was published in the Official Gazette of July 13, 2014, and became effective on the same day. The plaintiff filed a lawsuit for the annulment of the ICTA's decision and the repeal of the administrative fine. However, the Ankara 15th Administrative Court rejected the lawsuit on February 17, 2017, with its Decision No. 2016/2979 E., 2017/557 K. The plaintiff subsequently filed an appeal against Ankara 15th Administrative Court's decision and requested the cancellation of the administrative act in question and the reversal of the decision, by asserting that the decision was unlawful.
As per Article 19 of the Regulation on Information and Communication Technologies Authority Administrative Sanctions ("Administrative Sanctions Regulation"), in case an operator fails to abide by legislation regarding electronic communication safety—including network safety—an administrative fine of up to 1% of net sales in the previous calendar year may be imposed. However, Article 46 of the Administrative Sanctions Regulation (entitled "Warning") provides that the sanction criteria shall be taken into account with respect to infringements that have occurred within the scope of the Administrative Sanctions Regulation. Furthermore, the same Article declares that the ICTA may warn the operator before imposing an administrative fine. ICTA will consider the repetition period while giving the warning. ICTA may warn the operator once again, if the period taken into account for evaluation of the repetition expires.
In its decision (No. 2015/213 E., 2017/187 K.), the Regional Court considered that the plaintiff had been subject to an investigation with respect to whether it had fulfilled its obligations set forth and regulated under the relevant legislation regarding network and information security. As a result of the investigation, it had been concluded that the plaintiff had not fulfilled its obligation to keep logs and records in accordance with the relevant legislation, and an administrative fine corresponding to 0.025% of the company's net sales in 2014 was imposed on the company. The plaintiff had appealed this decision to the Regional Court.
The Regional Court initially determined that the Administrative Sanctions Regulation was in force on the date of the dispute, and that it provided a warning procedure before the imposition of an administrative fine on the operators. The Regional Court further stated that the Administrative Sanctions Regulation implemented a new system that prohibited the imposition of an administrative fine before the operator had been given a warning regarding the infringement, and only allowed the imposition of an administrative fine if the operator failed to remedy the infringement after being warned about it.
The Regional Court also indicated that, when the amount of the potential administrative fine is taken into account, the "warning mechanism" would lead operators to work more carefully and more meticulously to avoid such fines. Therefore, the Regional Court decided that the warning mechanism would be considered as a procedural requirement that would need to be exhausted prior to the imposition of administrative fines. In order to protect the interests of individuals/customers with respect to the operators that provide the services, the operators are saddled with certain obligations, while the enforcement authority or administration (i.e., the defendant in this case) must also undertake certain supervision and enforcement obligations.
Accordingly, the Regional Court concluded that, even though it is part of the defendant administration's supervision and enforcement obligation to penalize and prevent the failures and infringements of the operators, as well as to prevent consumers from getting harmed in the course of business, when the weight of the sanctions/fines and the provisions of the Administrative Sanctions Regulation are considered, it is clear that the main purpose of the law is to provide a fair balance by warning the operators about the relevant infringement, before they are hit with an administrative fine for the said infringement.
In light of the foregoing, the Regional Court rendered its decision that it was not lawful and fair to impose an administrative fine on the plaintiff without first warning the company about the relevant infringement, and decided to reverse the Ankara 15th Administrative Court's decision and cancel the ICTA's administrative fine of TL 35,406.09.
This article was first published in Legal Insights Quarterly by ELIG, Attorneys-at-Law in December 2017. A link to the full Legal Insight Quarterly may be found here.
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