The Turkish Competition Board (“Board”) is generally accepted to have established a very low standard of proof for competition law violations and, particularly, cartel activity. The standard of proof is even lower when it comes to concerted practices. In practice, if parallel behaviour is established, a concerted practice may readily be inferred and the undertakings concerned may be required to prove that such parallelism is not the result of a concerted practice.
Article 4 of Law on the Protection of Competition No. 4054 introduces a concept which is known as the “presumption of concerted practice”. This special mechanism favours the Board in establishing proof of concerted practices. The presumption of concerted practice, a concept that does not exist in EU competition law, easily shifts the burden of proof from the Board to the investigated company provided that certain market dynamics indicate parallel behaviour and/or non-competitive market structure, and this can be satisfactorily demonstrated by the Board.
The relevant provision enables the Board to engage in Article 4 enforcement if market players’ price changes, or where the supply/demand equilibrium or activity fields companies bear a resemblance to the parameters of a market where competition is typically distorted. Therefore, it is not even necessary for the Board to prove that the parallel behavior created competition conditions that are different from those that would have existed were it not for the parallel behavior.
Some of the Board’s concerted practice precedents recognize that “conscious parallelism” is rebuttable evidence of forbidden behavior and constitutes sufficient grounds to impose fines on the undertakings concerned. In order to be saved from responsibility, defendant companies must prove that they did not restrict competition by acting together or that the parallelism was the natural consequence of market conditions.
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