DECISIONS OF THE TURKISH COMPETITION BOARD
1. CATEGORIES OF THE TURKISH COMPETITION BOARD’S DECISIONS
A. REGULATORY ACTS
In Turkish administrative law, regulatory acts are of abstract and general nature. From this aspect, such acts do not lead to change in particular real or legal person’s status quo, but in everybody’s legal status quo.
Article 27 of the Code No. 4054 on the Protection of Competition (“CPC”), in which the legal provisions have been laid down concerning the Turkish Competition Authority (“the Competition Authority”)’s organization and the competition law, furnishes the Turkish Competition Board (“the Competition Board”) with the power to set out regulative arrangements relating to the implementation of this code. The Competition Board usually exercises its power to regulate by means of the communiqués it issues. However, the Competition Board also issues regulations and guidelines.
B. INDIVIDUAL ACTS
Differentiating from regulatory acts, individual acts lead to change only in the relevant real or legal person’s status quo.
According to CPC, individual acts that can be established in terms of competition law are erected on three main pillars. In that regard, the Competition Board adopts decisions after assessment of complaints, notices, applications as well as ex officio examined implementations concerning agreements between undertakings, concerted practices and decisions of associations of undertakings; market behaviors that constitute abuse of dominant position; and mergers and acquisitions as set out under Articles 4, 6 and 7 of CPC. In this context decisions on denial of pre-investigation and investigation, cease of violation, tacit clearance in case of non-response to M&A applications, and decisions imposing administrative fines are among final decisions adopted by the Competition Board.
In addition, the Competition Board not only adopts the decisions on the points counted above. Indeed, pursuant to articles 5 and 8 of CPC, the Competition Board also has the power to adopt decisions on exemption and negative clearance. For instance, the determination of the fact whether a commercial strategy which are or will be conducted on a market by a commercial actor will address “negative clearance” applications; whereas the determination of the fact that such strategy, even in case of non-compliance with competition law, might satisfy the conditions set out in CPC will address “exemption” applications. In practice, the applications for negative clearance and exemptions are usually lodged altogether, for which the Competition Board conducts proactive examination.
Moreover, pursuant to article 43 of CPC, undertakings and associations of undertakings are allowed to submit commitments to the Competition Board in scope of pre-investigations and investigations conducted related to alleged anti-competitive agreements and abuse of dominant positions, for the purpose of removing competition concerns. Accordingly, the Competition Board can also adopt decisions on whether such commitments are appropriate, or on the re-assessment of the commitments even after approval, or on applications for non-compliance with the commitments.
Furthermore, although it has not been explicitly set out under CPC, the Communiqué no. 2010/3 on the Right to Access to Case File and on the Protection of Confidential Business Information regulates the rights of undertakings and associations of undertakings to access to the case file, against whom the full fledge investigation or final examination has been launched. The parties’ requests for access to case files are considered by the Competition Board.
2. LEGAL CHARACTER OF THE COMPETITION BOARD’S DECISIONS
The Competition Authority is an autonomous administrative authority as per Turkish administrative law. Therefore, the decisions adopted by the Competition Authority by means of the Competition Board, its decision-making body, constitutes administrative acts.
It should be noted that, the Competition Board can adopt decisions on administrative fines which is to be calculated over the relevant undertaking’s turnover due to the prohibited behaviors laid down under article 4, 6 and 7, as well as hardening or opposing on-spot inspections carried out in businesses’ premises, or providing wrong or misleading information to the Competition Authority in scope of applications lodged.
Consequently, decisions adopted by the Competition Board, be it on administrative fines or not, is of administrative nature.
3. JUDICIAL REMEDIES AGAINST THE COMPETITION BOARD’S DECISIONS
A. PROCEDURE IN APPLICATIONS AND CASES AGAINST DECISIONS
Article 125 of the Turkish Constitution provides that “Any acts and actions by the administration can be judicially reviewed.”. Accordingly, it is possible to apply to judicial remedies against the decisions adopted by the Competition Board, decision-making body of the Competition Authority, being an administrative institution and an autonomous administrative authority.
Since the Competition Board’s decisions constitute administrative acts, the judicial remedy against such decisions is in administrative jurisdiction. In this respect, Administrative Courts of Ankara are authorized and competent to hold the cases filed against the Competition Board’s decisions. Against the courts decisions, request of appeals can be made to Regional Administrative Court and Council of State, respectively.
In terms of the entitlement to file a case against the Competition Board’s decisions, the criteria established in administrative law must be taken into account. Within this context, anybody who possesses personal, current and legitimate interest in filing a case against the Competition Board decisions are entitled to do so. Therefore, for instance if it is decided on denial of investigation against an undertaking, those who have interest to annul such decision will be entitled to file a case against the Competition Board’s decision. The case must be filed within 60 (sixty) days from the notification of the decision the relevant party unless provided otherwise. The same applies to actions for annulments for regulatory acts which are regulations and communiqués, which will commence from the date of publication of the relevant regulatory act in the Official Gazette.
Besides, according to the Article 11 of the Code No. 2577 of Administrative Judicial Procedure, before any judicial review, it is possible to request from the Competition Board for revocation, removal, amendment of or adopting new act.
B. JUDICIAL REVIEW OF DECISIONS
In terms of action for annulment filed against administrative acts, it is reviewed whether the act of which the annulment is requested carries the authority, procedure, ground, subject and objective elements. Since the Competition Board’s decisions constitute administrative act, administrative judicial authorities may examine whether such elements exist in the Competition Board’s decisions.
In addition, since the Competition Board has the power to adopt decisions, in practice, the Board’s decisions are not generally annulled on the ground of authority. However, exceptionally, it can be examined whether the Competition Board has gone beyond the authority limits conferred to it by CPC, in issuing regulatory acts.
The decisions adopted by the Competition Board is evaluated both on the merits and the procedures. In recent times, thanks to the know-how which the administrative judicial authorities have developed, sound judgments are awarded more often than before. Accordingly, it can be articulated that administrative judicial authorities conduct interdisciplinary examination from market-related economics and legal aspects regarding the Competition Board’s decisions. The points that may be under examination from the procedural aspects address rather the terms given by the Competition Board to relevant parties, and the fact whether the Competition Board has complied with the legal terms and quorum of decisions as part of internal examination process.
Apart from that, the unbinding opinions that the Competition Board provides pursuant to Article 9 of CPC, interim measures pursuant to Article 9 paragraph 4 and Article 11 paragraph 1 subparagraph (b) of CPC, and decisions on launching pre-investigation and investigation are interim decisions, as such they cannot be judicially reviewed unless brought before the court along with the final decision. Additionally, it should be noted that, filing a case against the final decision will not automatically suspend the execution of the decision. Therefore, suspension of execution should be requested to that end.
In consequence of the litigation, should the Competition Board’s decision is annulled, the decision will be held as if never effective. In practice, in particular subsequent to the annulment judgments of administrative fines, the Competition Board may re-launch investigation.
