Turkey: Major Judicial Set Back on Turkish Competition Board Decisions Concerning Investigations Leads to an Amendment in the Turkish Competition Law

Many competition law specialists in Turkey were expecting some crucial aspects of the Turkish Competition Law to be revised for more than a year, but few of these lawyers thought that this would be inevitable due to recent decisions of the High State Council (the highest administrative court in Turkey) canceling certain decisions of the Turkish Competition Board on very fundamental procedural grounds. The new amendments on the Turkish Competition Law do not only relate to this issue; but that is certainly the most interesting one.

There was a serious debate on the legality of the procedure of assigning the head of the investigation committee in any given investigation from among the members of the Turkish Competition Board (the competent organ of the Turkish Competition Authority to render final decisions on all issues concerning an investigation). Many attorneys thought that the head of the investigation committee is by definition a party to the controversy, and therefore cannot impartially cast a vote during the final decision meetings of the Board on matters relating to the investigation it leads.

The head of the investigation committee, also called the "prosecutor-Board member" in practice, formed its own opinion concerning the substance of the investigation much before the matter gets before the Board, since the head of the investigation committee, much like a Head of Unit in the EC Commission, was expected to lead the whole investigation. For example, he signed all the documents including the investigation report (akin to the Statement of Objections in the EC) and the additional opinion which explicitly recommends to the Board imposing an administrative fine to the subject undertakings. Then when the day came, he sat with the other Board members to hear the defense of the subject undertaking in an oral hearing, and voted to determine the ultimate administrative decision concerning the investigation. To quote a frequently used expression in referring to this anomaly; he acted both as the prosecutor and the judge in investigations where many millions of euros worth of administrative fines are awarded.

All of this has changed very recently. In the past years, together with a considerable increase in the number and significance of the competition law investigations in Turkey, the final decisions of the Competition Authority got more and more challenged before the High State Council on various grounds. A consistently appearing appeal argument was the "lack of impartiality" point. Upon the appeal by a Turkish pharmaceutical company of a decision of the High State Council affirming the procedure adopted by the Turkish Competition Authority, in its two decisions in February 2005, the General Assembly of Administrative Chambers of the High State Council (the highest plenary decision level) held that "... as the investigator Board member has participated in the issuance of the investigation report and the additional opinion which is issued upon the revision of the defenses submitted in response to the investigation report and by signing these documents has formed and declared his opinion beforehand, it would be against the impartiality principle for this member to participate and vote in the meeting where the final decision is rendered and where the investigation report and all defenses should be discussed and evaluated objectively.".

While the relevant chamber of the High State Council insisted on its affirming decision in yet another case, the General Assembly of Administrative Chambers of the High State Council reached the same conclusion in later cases in May 2005. Then, in June 2005, an amendment proposal on this particular article of the Turkish Competition law with a specific reference to the above cited decisions of the High State Council was filed with the Turkish Grand National Assembly Group Presidency of the Justice and Development Party by their Ankara Deputy, and this proposal was accepted by the relevant commission of the TGNA. The proposal was then promulgated as a law on July 2, 2005, and entered into force on July 13, 2005 by getting published in the Official Gazette.

Some of the other changes that are introduced with this new law are as follows:

It is now established that agreements that fall within the scope of a block exemption need not be notified. The Turkish competition law regime contains many block exemptions. The previous wording of the law was leaving room for doubt as to whether agreements covered by block exemptions still need to be notified. The issue is now resolved.

Individual exemptions in the Turkish Competition Law regime will no longer be subject to an upper durational limit of five years but may continue indefinitely while the same market conditions prevail. The Competition Board may now require certain conditions or commitments for an agreement to be granted an individual exemption.

In addition to this, the law has reduced the number of members of the Competition Board from 11 to 7. It is no longer necessary for half the members of the board to be competition specialists working for the authority.

Furthermore, as for merger notifications and other filings concerning concentrations above the thresholds of the Turkish merger control regime, there is now a separate administrative monetary fine for closing a transaction without obtaining the approval of the Turkish Competition Board.

Finally, as discussed above, the change means that members of the Competition Board cannot be assigned as heads of case teams. With this landmark amendment, the provision which allowed the appointment of a Board member to investigation committees no longer exists. The recent legislation change and the decisions of the High State Council, the most recent of which is obtained this week as a preliminary injunction decision of the 13th Chamber of the High State Council respecting the previous decisions of the General Assembly of Administrative Chambers of the High State Council, seems to have the potential to lead to the cancellation of all the appropriately appealed decisions of the Turkish Competition Authority so far rendered with the participation and vote of the prosecutor-Board member. It cannot be excluded that the Turkish Competition Authority, facing such a horrendous retroactive effect, may attempt to cure the procedural defect by passing new Board decisions on the same investigations only with the attendance of the appropriate Board members. No doubt, such attempt may lead to further heated legal debates in the future.

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.