The Board recently published its reasoned decision on the
preliminary investigation conducted against the Chamber of Forest
Engineering ("CFE"). The process was launched following
allegations that the CFE published minimum price tariffs and
imposed sanctions on the members of the profession by prohibiting
them from exercising their profession (Reasoned Decision No.
16-33/561-242; October 13, 2016).
The Board first determined that the CFE had been established
under a specific law ("Law No. 6235") and conducts its
activities subject to the Union of Chambers of Turkish Engineers
and Architects ("Union"). It is a professional
organization with public institution status, as specified in
Article 135 of the Turkish Constitution. The Board noted that the
CFE is entrusted with various tasks related to forestry under the
Code of Forest Engineering, Forest Industry Engineering and
Woodworking Industry Engineering No. 5531 ("Law No.
5531"). The Board concluded that the CFE was a trade
association within the meaning of competition law, as defined under
Article 3 of Law No. 4054.
In its review process, the Board took into consideration its own
precedents as well as the courts' precedents on similar
applications by various other trade associations. The Board
indicated that one must first assess whether the trade
association's practice in question is based on any existing
legislation. The Board stated that, so long as the practice remains
within the framework of authorities granted by law and the related
legislation, the Board would lack jurisdiction over the matter. However, the Board could
still deliver an opinion to the relevant institutions pertaining to
the practices that may potentially restrict competition.
On the other hand, the Board's approach differs when the
practices in question, which could restrict competition in the
market, are not based on a legislative act. In that case, the Board
may impose administrative monetary fines on the trade association
concerned, file a lawsuit for the annulment
of the relevant legislation which constitutes the basis of such
practices, or send an opinion for the
cessation of the practices in question.
In this case, the Board found that the CFE's alleged
practices fell within the explicit authority granted by Article 13
of Law No. 5531, and therefore, a decision could not be rendered
due to a lack of jurisdiction. In light of its precedents, the
Board refrained from sending an opinion to the relevant
institutions. However, it noted that Article 13 of Law No. 5531,
which forms the basis of the CFE's practices, had been
previously treated as a provision that interferes with market
prices. The Board had addressed this matter in its Competition
Report titled, "Scanning the Turkish Legislation from a
Competition Law Perspective," published by the Competition
Authority in 2015.
 The 13th Council of State's
decision dated January 5, 2010, and numbered 2007/2748 E., 2010/8
K.; the 12th Ankara Administrative Court's decision dated
November 19, 2014, and numbered 2014/978 E.
 The Board's decision
numbered 02-04/40-21 and dated January 22, 2002; the Board's
decision numbered 06-79/1021-295 and dated November 2,
 The Board's decision
numbered 07-41/453-M and dated May 16, 2007.
 The Board's decision
numbered 15-42/688-245 and dated December 2, 2015.
This article was first published in Legal Insights
Quarterly by ELIG, Attorneys-at-Law in March 2017. A link to the
full Legal Insight Quarterly may be found
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