Turkey: The Turkish Competition Authority Unveils The Guideline Regarding The Regulation On Active Cooperation For The Purpose Of Discovery Of Cartels

The Regulation on Active Cooperation for Discovery of Cartels(the “Leniency Regulation” or the “Regulation”) was published in the Official Gazette dated 15.02.2009 and numbered 27142 and thus entered into force. The Guideline Regarding the Regulation on Active Cooperation for the Purpose of Discovery of Cartels (“Leniency Guideline” or the “Guideline”) is prepared in order to provide certainty in interpretations, to reduce uncertainty in practice and to provide guidance for the undertakings in order for them to benefit from the leniency program more efficiently as a requirement of transparency principle. The Leniency Guideline was published on April 19, 2013.

The Leniency Guideline contains comments and explanations concerning the Leniency Regulation. The main titles and their explanations are provided below:

I. The Scope of the Leniency Regulation

As cartels are secret by their nature compared to other competition law violations, for the purpose of revealing and investigating cartels, it would be beneficial to grant immunity from monetary fines or provide reduction on monetary fines to the active cooperators that apply to the Competition Authority (“Authority”). In this regard, pursuant to paragraph 7 of the Leniency Guideline, the general principle is to reach a conclusion that is in favor of those who are in cooperation with the Authority in cases which are not clearly regulated by the Leniency Regulation (in Article 7 of the Regulation), or at least which require an interpretation.

In this respect, the executives/employees of the applicant undertakings (executives/employees which are actively cooperating and disclosing the undertaking’s violation in relation to the reductions on the fines) can also benefit from the exemption or reduction governed by the Regulation even if the applications are made by the undertakings. Therefore, paragraph 8 of the Leniency Guideline provides that former or present executives/employees, who may be subject to the fines due to their determining effect on the violation, may choose to apply independently based on justifications, such as not being able to persuade the undertaking for a leniency application. Paragraph 12 of the Leniency Guideline highlights that the Leniency Regulation has started a triple race between the undertakings, between the executives/employees and between the undertakings and the executives/employees in order to be the first to apply and benefit from the Regulation.


Regarding the immunity from fines, paragraph 14 and the following paragraphs of the Guideline provide that Article 4 (relates to immunity from fines granted to undertakings and their executives/employees) and Article 7 (relates to executive/employee’s independent application from their undertaking), set forth four alternative conditions with respect to which the existence of one such condition rules out the others.

Paragraph 20 and the following paragraphs of the Guideline provide that the probability of receiving immunity from finesis higher for applications made prior to the preliminary investigation’s initiation. The application’s acceptance after the initiation of the preliminary investigation depends on whether the Board has any evidence indicating that Article 4 of the Law on Protection of Competition No.4054 (“Law”) is violated or not. In other words, as opposed to the applications made before the initiation of the preliminary investigation, the Authority has discretion as to whether it will accept applications made at this stage. If the Authority already possesses evidence justifying the conclusion that Article 4 of the Law has been violated, the application will be handled as request for reduction of the fine.

Paragraph 26 of the Leniency Guideline provides that within the scope of Article 6 and 9 the wording of “the documents and information containing products affected by the cartel, duration of the cartel, parties to the cartel, dates, locations, attendees of meetings in connection to the cartel” does not imply an obligation to submit evidence which adds significant value to the case compared to those which is already at the Authority’s hand. In other words, once the conditions of Articles 6 and 9 are met, the reduction of fines is automatically granted.

III. Conditions

Paragraph 33 of the Leniency Guidelines stipulates that the undertakings cannot benefit from the Leniency Regulation in case they apply collectively. This is because when the cartel members realize that the cartel is going to disperse, they could apply to the leniency program together. As a result, this would allow them to receive the benefit from the cartelistic behavior and also to be immune from fines or to receive very low fines. This would create the risk ofmaking the formation and maintenance of cartels easier.

Paragraph 33 of the Leniency Guidelines provides examples of documents that can be used as evidence. Paragraph 34 provides that the expression “possessed” also covers the newly possessed documents and information required during the investigation. However, it is stated that no obligation which cannot be easily fulfilled would be imposed on the undertakings.

Paragraph 36 of the Leniency Regulation provides that there is a burden of not keeping the information and documents confidential and not destroying them. Paragraph 39 emphasizes that this condition obliges the undertaking to provide related documents in their possession and all documents to be possessed in the future to the Authority, and that destroying these documents will violate Article 6 and Article 9 of the Leniency Regulation. In case such documents are destroyed by the employees or executives of the undertaking, the Authority will assess whether such behavior is one-off. The facts of whether the respective undertaking informed the Authority right after it became aware of the behavior and whether it took necessary precautions in order to prevent such behavior or not would be significant for determining whether this behavior would be attributed to the undertaking or not.

Paragraphs 40 and 41 of the Leniency Guidelines, under the condition of ceasing to be a party to the cartel, provide that, the Authority might request from the leniency applicant to continue to remain in the cartel until the on-site inspections are completed. In this case, the applicant must inform the Cartel and On-Site Inspection Support Unit about all communications made with other cartel members.

Articles 6 and 9 of the Leniency Regulation provide that unless stated otherwise by the authorized division, the principle is to keep leniency applications confidential until the service of the investigation report. The Guideline explains the purpose of such provisions as avoiding the possibility of spoliation of evidence through disclosure to the members of cartel before the investigation is completed. Additionally, the Guideline provides the option for the undertakings to provide information to other competition authorities or institutions, organizations and auditors on the condition that the confidentiality of the investigation will not be harmed. Furthermore, as per paragraph 44 of the Guideline, if the confidentiality principle is not complied with, the Board will evaluate the situation on a case by case basis based on the criteria of whether the person at issue is a high level manager or the Board was notified promptly after the breach or not.

In the paragraph 46 of the Guideline, the sub-titles of the obligation under the Leniency Regulation for the undertakings to actively cooperate with the Board between the process of completion of the investigation and the conveyance of the final decision are governed. Pursuant to the relevant paragraph, in cases where the undertakings obtain new information and documents, as per the obligation to cooperate; they shall submit these, and they shall answer the requests of the Board regarding the explanation of such information/document, provide the opportunity of utilizing the testimony of former managers and employees and, if the participation in a cartel is denied at the beginning, shall avoid providing explanations that conflict with the information and documents submitted during the application.

The Leniency Regulation provides that, if the applicant coerced other undertakings that are party to the cartel to participate in the violation, the applicant will not benefit from the immunity, but may still receive reduction in monetary fines. Furthermore, paragraph 48 of the Guideline provides the cases that lead to coercion to violation. As per the relevant paragraph, if there is physical violence or serious economic pressure such as a mass boycott or if there is strong evidence proving such threats, it can be said that there is coercion. However, according to the Guideline having the largest market share in the market, leading the cartel alone or with other companies, threatening to enter into a price war if the other parties do not participate in the cartel, decreasing the prices in order to minimize the profit or punishing the undertakings that do not comply with the agreement are not interpreted as cases of coercion. .


Under the headline of Procedure, The Leniency Guideline covers, in parallel with the Leniency Regulation, the procedural aspects of applying to the Cartel and On-site Investigation Support Unit, the timelines, oral submission, learning the result of the application in a short time and the final decision to be given after the completion of the investigation, by separating each issue into a sub-section and providing in-depth guidance.

The Leniency Guideline under the title “4.2. Providing Time for the Applicants” explains the scope of the time period for the applicants to complete the necessary information and documents that are requested pursuant to Leniency Regulation.

Pursuant to paragraph 57, in principle every person that requests such time should be granted time; however, if such request is made at a very late stage of the investigation, then time may not be granted due to time constraints or a very short time may be granted. In the subsequent paragraphs, it is set forth that the time to be given will be evaluated on case by case basis but in any case the granted time cannot exceed one month. Finally, it is provided that if rightful reasons such as there being thousands of files to be viewed or too many employees to be interviewed exist, the anticipated time may be extended as per the requests of the relevant parties.

In relation to oral submission, the Guideline provides that in cases where the information regarding the cartel is provided orally, such information will be converted into a written copy by the authorized persons and upon receiving the confirmation of the information provider, such information will be recorded via electronic devices. As per paragraph 66 of the Guideline, after the information that is provided orally is converted into written format, kept as an inner correspondence of the Board and accepted as evidence by the authorized persons, the parties subject to investigation may view such correspondence within the Board after the service of the investigation report but cannot take a copy.

After the completion of the investigation and the defense stages, if the Board decides that there is cartel, the fines that will be implemented as per the Leniency Regulation will be calculated and applied. As per paragraph 73 of the Guideline, the Board may conclude in its final decision which will be given after the completion of the investigation that the acts that are subject to the investigation do not constitute a cartel. In this situation, if the Board decides that such acts infringe Article 4 of the Law No. 4054 and therefore imposes monetary fine, such monetary fine will be calculated within the scope of Article 16 of the Law titled “Administrative Monetary Fines”.

V. Additional Reduction

In paragraph 81 of the Guideline, it is provided that if one cannot benefit from the immunity in relation to a given market but makes the first leniency application in relation to a cartel in a different market, it is possible to receive immunity in relation to the second market and a reduction from the monetary fines in relation to the first market.

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.

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.

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”

Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.