Turkey: Turkish Competition Authority's Fining Natural Persons

Last Updated: 15 September 2017
Article by Ertuğrul Can Canbolat and Sinan Lahur

1. Introduction

Personal liability rules for the competition law violations and accordingly, the tracking systems to ensure that the damages caused are covered/compensated by the violating person from his/her own resources, have been under the increasing scrutiny of the competition authorities all around the world and even despite the discrepancies, some of the EU member states support the idea of strengthening the individual liability rules by showing a tendency to criminalize competition enforcement or by vesting the authorities with the competence to disqualify undertakings' directors, like in the common law jurisdictions.

In this context, Law No. 4054 on Protection of Competition ("Turkish Competition Law") and Regulation on Fines to Apply in Cases of Agreements, Concerted Practices and Decisions Limiting Competition, and Abuse of Dominant Position ("Turkish Regulation on Fines") set forth the rules and principles to determine the amount of fine that will be imposed upon the undertakings as well as their employees who violated the Turkish Competition Law. Therefore, under the Turkish Competition Law, the employees having decisive influence on the occurrence of the infringement could also be subject to the administrative fines.

2. Administrative Fines under the Turkish Competition Law

In cases where the Turkish Competition Authority ("TCA") resolves that a behavior constitutes an infringement, it will impose an administrative fine calculated from the infringing undertaking's turnover achieved within the year preceding the infringement decision of the TCA. Within this scope, the TCA takes the characteristics of the violation into account when determining the percentage of the fine to be imposed and thus, the consequences of an infringement vary depending on the facts of the case and specific behavior. However, the TCA is entitled to impose a base fine between two percent and four percent for cartels and five per thousand and three percent of the company's turnover for other violations.

Additionally, it should be emphasized that the TCA is vested with a right to increase the fine percentage up to ten percent of the company's turnover achieved within the previous year, by taking into account the aggravating factors such as undertaking's market power, undertaking's decisive influence, the severity of damage, recidivism of the violation, maintaining cartel after the notification of the investigation decision, not complying with the commitments made for the elimination of the competition problems within the scope of Article 4 (anticompetitive practices) or 6 (abuse of dominance) of the Turkish Competition Law, providing no assistance with the examination and coercing other undertakings into the violation.

Furthermore, Article 16(4) of the Turkish Competition Law provides that "in case administrative fines mentioned in paragraph three are imposed on undertakings or associations of undertakings, an administrative fine up to five percent of the penalty imposed on the undertaking or association of undertakings shall be imposed on managers or employees of the undertaking or association of undertakings who are determined to have a decisive influence in the infringement". Article 8 of the Turkish Regulation on Fines brings a similar provision by setting out also the minimum level of the percentage in cartel cases: "Each of the managers and employees of the undertaking who were detected to have had decisive influence on the cartel shall be separately given between three percent and five percent of the fine given to the undertaking, taking into account points such as active cooperation".

Indeed, the active cooperation of the employees with the TCA in revealing the infringement of the competition rules may be rewarded with no or reduced fine for them, provided that the quality, efficiency and timing of the cooperation play a crucial role in the infringement detection process.

Despite the clarity on the TCA's power to impose fines on persons and the amount of fine to be imposed, the term "decisive influence" on the occurrence of the infringement is defined under neither the Turkish Competition Law nor the Turkish Regulation on Fines; hence, the lack of clarity and the ambiguity on this matter may be deemed as the great discretionary power of the TCA in determining whether to impose an administrative fine on individuals. To bring more clarity to this issue, the TCA's precedents with regard to the individual liability should be examined in detail.

3. The Turkish Competition Authority's Precedents with regard to Individual Liability

In its decision dated 25.11.2009 and numbered 09-57/1393-362 ("White Meat decision"), the TCA concluded its investigation regarding whether 27 undertakings operating in the white meat market and the Association of the White Meat Industrialists and Breeders violated Article 4 of the Turkish Competition Law. This decision must be examined in a detailed way for the significance it constitutes. The White Meat decision is the first one in relation to an individual liability under the Turkish Competition Law. More importantly, it addresses the undefined in the Turkish legislation term of the "decisive influence" and sets forth the respective conditions under which the behaviors are to be considered as having the decisive influence.

Accordingly, a manager shall be considered as having the decisive influence on the realization of the infringement where he/she is:

  • inviting other players in the market to coordination,
  • providing suggestions to other players in the market relating to increasing prices by decreasing the supply,
  • encouraging or leading other undertakings to cooperation,
  • coordinating the cartel,
  • offering to participate in the cartel, and
  • supervising/monitoring whether the parties comply with the cartel agreement.

In the White Meat decision, in addition to approximately TRY 27.6 million (approx. EUR 6.710 million) administrative fine imposed on the undertakings, the TCA imposed three percent of the administrative fine on a natural person, the board chairman of Pak Tavuk Gıda Sanayi ve Ticaret A.Ş. ("Pak Tavuk") and a head of the Association of the Union of White Meat Industrialists and Breeders; considering his decisive influence on realization of the infringement.

In its other decision dated 03.11.2009 and numbered 09-51/1245-314 ("Bodrum Ferryboat Decision"), the TCA examined whether the Bodrum Feribot İşletmeciliği A.Ş. and Bodrum Express Denizcilik ve Turizm A.Ş.  violated Article 4 of the Turkish Competition Law by being engaged in rebate practices (60% of prices) in order to exclude the new entrant(s) from the market. Following the investigation, the TCA determined the said activity as an infringement under the Turkish Competition Law and imposed approximately TRY 90.000 (approx. EUR 21.880) administrative fine on the undertakings. Unlike in the White Meat decision, in the Bodrum Ferryboat decision the TCA determined that the anticompetitive activities in question were conducted without the decisive influence of the manager of the infringing undertaking, but rather under the instructions provided by other players operating in the market. Thus, as a result of lacking the decisive influence over realization of the infringement, no administrative fine was imposed on the natural person(s).

In spite of the TCA's decisions setting out the conditions for the "decisive influence" issue, it is still not certain whether the said conditions are cumulative. In the TCA's Peugeout-11, Cargo2, Citroen3, Chamber of Jewelers4 and Steel Ring decisions5 no fine was imposed on the managers or employees and no reasoning for that was provided by the TCA, even though such sanction was demanded by the reporters7. Therefore, determination of having the decisive influence over the realization of the infringement is still not absolute in the TCA's precedents. As a result, determination of whether the manager or the employee of the infringing undertaking may face the fine up to five percent, is still not sufficiently certain and constitutes difficulties for natural persons.

The more recent decision which resulted with an administrative fine imposed on natural persons is the TCA's decision dated 05.03.2012 and numbered 12-24/711-199 ("Soda Ash Decision"). In the decision, the TCA examined whether the undertakings conspired to fix powder sodium sulfate and crystal sulfate prices and engaged in customer allocation as well as conspiring to fix raw salt prices. In the Soda Ash Decision the TCA imposed TRY 963.482 (approx. EUR 234.238) administrative fine on Otuzbir Kimya ve Sanayi Türk Ltd. Şti. ("Otuzbir Kimya") and Sodaş Sodyum Sanayi A.Ş. ("Sodaş"). Moreover, the general manager of the Otuzbir Kimya faced TRY 12.532,38 (approx. EUR 2.917) fine and general manager of the Sodaş faced TRY 8.186,04 (approx. EUR 1.990) administrative fine due to their decisive influence in the infringement of the competition law. Due to the fact that the managers administrated the agreement and coordinated other parties to comply with the agreement, the TCA determined their activities as having the decisive influence over the realization of the infringement. Interestingly, the TCA also concluded that even though sales representative and marketing supervisor of the undertakings played the decisive role in the infringement, no fine was imposed to them since they were following the orders given by their managers. Thus, the main decisive influence in this infringement was caused by the managers. This decision may also be used to argue that the conditions for the "decisive influence" do not have to be cumulative, since the TCA relied on only two of the conditions out of the ones originally set forth in the White Meat decision.

4. Conclusion

To sustain and ensure the efficient competition in the market, effective sanction system for violation of the competition rules must exist and function in a clear and unambiguous way. In Turkey, undertakings may be faced with a fine of ten percent of their total turnover generated in the year preceding the infringement decision. Moreover, natural person(s) may also face a fine of up to five percent of the fine which was imposed on the infringing undertaking. To impose such fine on natural persons, the Turkish competition law system requires the natural person to have the decisive influence over the realization of the infringement. Even though there exists no certain definition of the term "decisive influence" in the legislation, the TCA's practice of fining natural persons brings some clarity, and at the same time ambiguity, to this issue.  By setting forth the conditions for the "decisive influence", it is still not clear whether those conditions are cumulative. This is something yet to be clarified by the practice of the TCA in the near future, hopefully.  


1 Decision dated 06.08.2010 and numbered 10-53/1057-391

2 Decision dated 03.09.2010 and numbered 10-58/1193-449

3 TCA's Citroen Decision dated 23.09.2010 and numbered 10-60/1274-480.

4 TCA's İzmir Chamber of Jewelers Decision, dated 27.10.2016 and numbered 16-35/603-268.

5 TCA's Steel Ring Decision dated 30.10.2012 and numbered 12-52/1479-508.

6 Reporters opinions are not binding upon the TCA.

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.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


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.