Turkey: Potential Reform

Last Updated: 10 March 2015

Long-awaited amendments to the Law on the Protection of Competition No. 4054 (“Competition Law”) became a hot topic when the Turkish Parliament announced that the draft law containing the proposed amendments (“Draft Law”) had been officially added to the drafts and proposals list. The Prime Ministry sent the Draft Law to the Presidency of the Turkish Parliament on January 23, 2014. The Draft Law was discussed in the Turkish Parliament’s Industry, Trade, Energy, Natural Sources and Information Technologies Commission (“Parliament Commission”) during the first half of February. Due to the upcoming parliamentary elections and more pressing agenda topics such as draft legislation on national security, the Draft Law is unlikely to be referred to the Parliament’s general assembly before the second half of 2015.

The Draft Law is designed to be more compatible with the way the law is actually being enforced. It also aims to further comply with the EU competition law legislation on which it is closely modeled. It introduces several changes which aim to ensure a more efficient procedure in terms of time and resource allocation.

One of the most important new additions introduced by the Draft Law is the de minimis rule.

By this new provision, the Board may disregard agreements, concerted practices and decisions which do not exceed a certain market share and/or turnover threshold. This addition may be drafted to enable the Competition Board to concentrate on serious infringements and avoid trivial cases such as the recent local bakeries and driver schools investigations.

The Draft Law proposes several significant changes in concentration provisions:

  • The substantive test for concentrations will be changed. The EU’s SIEC Test (significant impediment of effective competition) will replace the current dominance test.
  • The Draft Law adopts the term of “concentration” as an umbrella term for mergers and acquisitions.
  • The Draft Law eliminates the inheritance exemption for acquisitions.
  • The Draft Law abandons the Phase II procedure, which was similar to the investigation procedure, and instead provides a four-month extension for cases requiring in-depth assessments. During in-depth assessments, the parties can deliver written opinions to the Board, which will be akin to written defenses.
  • The Draft Law extends the appraisal period for concentrations from the current 30-day period to 30 working days, which equates to approximately 40 calendar days in total.

The Draft Law introduces three tools, known in many other jurisdictions but new to the Turkish competition law, to end investigations prematurely.

  • First of these is the settlement procedure, which enables the Board to settle with the investigated parties that admit their infringements before the investigation report is served to them.
  • The second tool is the commitment procedure, which paves the way for the Board to accept reasonable commitments submitted by the parties during preliminary investigations or investigations, and decide not to launch an investigation or to end an ongoing one. The Board will provide the details of these new procedures by secondary legislation.
  • Thirdly, the Board may decide to end an investigation, wholly or partially, before the investigation report is served to the parties, if it is convinced by the case handlers’ recommendations that the parties did not violate the law.

The Draft Law also proposes significant changes in the investigation procedures for competition law violations.

  • First of all, the six-month investigation period will be reduced to four months. This period may be extended up to four months, compared to the existing extension limit of six months.
  • Secondly, the Draft Law removes the first written defense mechanism, which is the defensive response to the investigation notice. Therefore, the parties will have two written defense rights instead of three.
  • The Draft Law also extends the deadlines for defense submissions and the case handler’s additional opinion.
  • The Draft Law sets a one-month deadline for the Board’s final decision announcement following the oral hearing meeting or the end of the written defense rights period.
  • The Draft Law proposes that the reasoned decision be served within two months after the final decision is made.
  • The Draft Law proposes to abandon the fixed rates for certain procedural violations, including failure to notify a concentration and hindering on-site inspections, and set upper limits for the monetary fines for these violations. This new arrangement gives the Board discretionary space to set monetary fines by conducting case–by-case assessments. On the other hand, the Competition Law’s other provisions on monetary fines are left untouched.

All of these proposals will enter into force if the Turkish Parliament approves the Draft Law. For the time being, the specific effective date remains unknown.

This document is not intended to create an attorney-client relationship. You should not act or rely on any information in this document without first seeking legal advice. This material is intended for general information purposes only and does not constitute legal advice. If you have any specific questions on any legal matter, you should consult a professional legal services provider.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Contact the Author?
Click here to email the Author
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Other Turkey Advice Centres
Tax
Intellectual Property
Privacy and Data Protection
More Advice Centers
Significant Recent Cases
Turkish Competition Board case summaries.
Useful Resources
A collection of articles, essays and reports written by our experts.
On the occasion of the 20th anniversary of competition law practice in Turkey, we have written and published an academic publication we hope will be valuable to the global discussion and study of competition law issues. The book is comprised of 12 academic articles and is a collaborative effort of lawyers specialising in competition law at ELIG Gürkaynak, including junior associates and novices in the field, in addition to Gönenç Gürkaynak’s own extensive contribution to each and every article.
The most recent developments within our firm and practice areas.
Upcoming Events
Information on upcoming or recent events and conferences hosted by ELIG Gürkaynak Attorneys-at-Law.
ELIG Gürkaynak has hosted a Turkish competition law webinar in collaboration with Lexology. During the webinar, head of our competition law and regulatory practice, Mr. Gönenç Gürkaynak, introduces remedies and Phase II reviews under the Turkish merger control regime.
Tools
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions