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.

II. NON-IMPOSITION OR REDUCTION OF FINES

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. .

IV. PROCEDURE

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.

Authors
 
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”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
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