The Communiqué No. 2012/2 on Complaint Procedure Relating to Competition Infringements ("Communiqué" or "Communiqué No. 2012/2") entered into force through publication in the Official Gazette dated August 23, 2012 and numbered 283901.
The Communiqué was issued in order to determine the filing of procedures and principles related to the assessment of the complaints regarding violations of Articles 4, 6 or 7 of the Act on the Protection of Competition No. 40542 ("Competition Act") to be lodged before Turkish Competition Authority ("Authority") on the basis of Article 27 of the Competition Act.
Procedure to Lodge a Complaint
The Communiqué No. 2012/2 regulates three aspects of the procedure to lodge a complaint:
Persons Entitled to Lodge a Complaint
Applications, denouncements and complaints before the Authority may be made in the form of application to the Ministry of Customs and Trade. The Communiqué No. 2012/2 does not cover the complaints to be made by public institutions.
As it can be seen, as per the Communiqué No. 2012/2, all persons, including the ones who do not have a legitimate interest are entitled to lodge a complaint. However, Article 9 of the Competition Act expressly states that "real persons and legal entities who have a legitimate interest are entitled to file a complaint". Within this scope, it should be mentioned that it would be better to include the condition to have a "legitimate interest" in the Communiqué No. 2012/2 in order to ensure full compliance between the Communiqué No. 2012/2 and the Competition Act.
Moreover, neither the difference between denouncement and complaint nor their consequences are stated in the Communiqué No. 2012/2.
Form of the Complaint
Complaint application before the Authority should principally be made in writing and submitted to the Authority either in person or via mail, e-mail, fax, telephone or any other way. It is unclear whether an application made through telephone should be followed by a written submission or not. Applications which are not made in person to the Authority are considered as denouncements as it is the case for verbal applications, and will be put down on a minute.
Scope of the Complaint
- With Regards to the Complainants. Applications made by real persons should include the name and surname, identity number, address and signature of the applicant. As for complaints made by legal entities, they should include the commercial name/trade name of the legal entity, its address, signature circular and signatures of people entitled to represent and bind the legal entity pursuant to the signature circular.
In case a complaint application is made by a representative; the original or true copy of the document, which shows the power of the representation, should be annexed to the application and the application should include the addresses of both the representative and the represented real person or legal entity, as well as the signature of the representative.
The complainant has the right to request that its identity information is to be protected and kept confidential. In such an event, the request shall be respected and the personal data will not be disclosed. However, it would be appropriate for the Authority to not disclose any information or documents submitted at the stage of application, in so far as they may contain sensitive information on the persons and institutions.
Applications, which do not satisfy the above-stated conditions, would in principle not be taken into account by the Authority. However, the Authority, on its own initiative, may initiate proceedings even though the above-mentioned information is not complete, if the application is considered to be important.
- With Regards to the Competition Infringement. In addition to those specified above, applications should also include clear, detailed and precise information on the competition infringement. In other words, applications should include concrete information and/or documentation regarding the form, place and date of the infringement and on the undertakings or associations of undertakings about whom investigation is requested. Otherwise, the applications will in principle not be taken into account. However, the Authority may request additional information before initiating preliminary investigations. In such case, it would be more appropriate that the Authority sets a time-limit within which the complainant may provide its views.
In addition, it would be also beneficial for the complainants to submit all documentation in their possession directly or indirectly connected with the facts set out in the application such as agreements, commercial documents, correspondences, etc. as well as the names and addresses of the persons able to testify to the facts set out in the complaint.
In the light of the foregoing, it would be more efficient and easy for both the complainants and the Authority, to prepare a standard application form including all the required information.
- As Regard to the Incorrect Information.The Authority has the power to initiate legal actions against persons providing incorrect information in their applications.
Evaluation of the Complaint
The Authority will inform the complainants or their representatives about the outcome of their application within thirty days. Concerning incomplete applications, the complainants or their representatives will not be informed.
In addition to the criticisms indicated above, it should also be mentioned that the Communiqué also does not regulate what steps should be taken in cases where the complaints are rejected.
Conclusion
Notwithstanding to the above given critics, the issuance of the Communiqué No. 2012/2 would be beneficial, since the Authority would be able to act more efficiently and rapidly on the basis of the information and the documents provided by the applicants.
Footnotes
1. Please see the following link to access the Communiqué No. 2012/2
http://www.rekabet.gov.tr/Resources/Tebligler/teblig94.pdf (accessed on: 18.01.2013).
2. Please see the following link to access the Competition Act
http://www.rekabet.gov.tr/default.aspx?nsw=j6VYScQKgFG/oIWFwqUaBQ==-SgKWD+pQItw= (accessed on: 18.01.2013).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.