Turkey: Can The Turkish Competition Authority Investigate Foreign Companies Located Outside Turkey? Yes, In Theory. Not Quite, In Practice.

Last Updated: 22 January 2018
Article by Baran Can Yildirim, LL.M. and Mehmet Salan

It is without dispute that the Turkish Competition Authority ("TCA") has, at least according to its laws and regulations, the power to investigate and fine companies outside Turkey, if the practices of the companies are considered to affect Turkish markets1. The TCA, however, has so far not been able to exercise this jurisdiction consistently and effectively primarily due to deficiencies in the procedures related to the service of certain necessary documents on foreign companies located outside Turkey. These deficiencies are considered to be due to lack of international agreements between Turkey and the countries in which the investigated companies are located, as well as lack of established local practice and regulations in Turkey.

The focus of this Article will be on these procedural deficiencies in light of the TCA's decisions in the Glencore Istanbul2, Glencore International3 Anadolu Cam/Yioula4, Johnson&Johnson5, Sun Express/Condor6 and Block Train7 matters, in which the TCA had failed either to serve the notification of its investigations on the foreign companies or to affect such serve without significant and meaningful delays.

As such, we will discuss in the following, (i) first, the law governing the service of the notifications to foreign companies; (ii) second, the methods used by the TCA for serving foreign companies; (iii) third, the facts of the subject decisions; (iv) and lastly, our suggestions for possible solutions.

What is the applicable law on the notifications to foreign companies?

The local law governing the fundamentals of notification and the method of service is the Turkish Notification Law No. 7201 ("Notification Law"). Article 25 of the Notification Law regulates notifications to be served in foreign countries. Pursuant to this Article, the documents subject to the law are to be directly sent to the Turkish Embassy or Consulate, or through the Ministry of Foreign Affairs8. Finally, the Turkish Embassy or Consulate affects service as provided for in the local law of the country in question by means of the relevant authority responsible for the service in that country.

Article 25 of the Notification Law is to be applied in the absence of an international agreement governing service of the documents. The documents subject to service by the TCA, however, are administrative documents in nature and Turkey is not a party to any international agreement that covers the service of administrative documents. Therefore, Notification Law appears to be the only statutory authority to be used in assessing the efficacy of the services of the TCA's documents. Having said that, the following international conventions should be noted in this article as the TCA has attempted and failed to serve its administrative documents according to these international conventions: (i) The Hague Convention on Civil Procedure (1954), and (ii) Additional Treaty on Legal Proceedings to Hague Convention (1988).

The following section provides a list of methods used by the TCA when serving official documents such as Investigation Notice and Investigation Reports on the recipients.

Which methods were used by the TCA when notifying foreign companies?

As a preliminary matter, under Article 43 of the Act No: 4054 on the Protection of Competition ("Competition Law"), the TCA is required to serve its investigation notice on the parties concerned within 15 days following its decision on initiating the investigation, requesting their first written defenses. Further, pursuant to Article 45 of the Competition Law, the TCA is required to serve its final investigation report on the parties concerned, and request their second written defences9. Indeed, carrying out the investigation in the absence of these notifications violates the concerned parties' due process rights to a defense under fundamental principles of Turkish law10.

As such, the TCA, when notifying foreign companies, has (i) tried to serve the notification on the Turkish subsidiary, or the Turkish liaison office11 of the concerned foreign company, if any, (ii) requested either through the Ministry of Foreign Affairs under the Notification Law or by directly sending the notification to the relevant Turkish Embassy or Consulate in the country where the subject company is located,  (iii) requested that the Ministry of Justice serve the notification in accordance with the International Conventions discussed above, or (iv) served the notification directly through registered post by the Turkish Postal Service ("PTT").

Surprisingly enough, the last method used by the TCA, i.e. the use of the PTT, has turned out to be the most effective method of service used so far, although a method not provided for under the Notification Law12.

The following sections will discuss the TCA decisions dealing with notification issues, in which the abovementioned notification methods were used.

The history of attempts by the Turkish authorities to notify foreign companies.

The TCA, in Glencore Istanbul, initiated a preliminary investigation in 2003 against companies exporting coal to Turkish markets, the Austrian Krutrade, the Swiss Mir Trade and the Swiss Glencore International. The preliminary investigation became a full-fledged one against Mir Trade, Krutrade, and Glencore International's Turkish subsidiaries. The TCA later concluded that Glencore International also makes its own direct sales to Turkey and a separate investigation against Glencore International was initiated in 2005.

Regarding service, the Turkish authorities used a variety of methods, revealing the dilemma it found itself in given the gaps in the applicable laws discussed above.  To start with, the Austrian Krutrade was served with the investigation notice without any trouble by service on its Turkish liaison office as the liaison office accepted the service on behalf of Krutrade without objection.  As for the Swiss Mir Trade, the TCA, pursuant to Article 25 of the Notification Law, requested the Ministry of Foreign Affairs to send the notification to the Turkish Embassy in Bern, where the company is located.

In the meanwhile, the TCA had attempted to serve the investigation notification on Glencore International through its Turkish subsidiary, Glencore Istanbul. Glencore Istanbul, however, refused to accept service of the notification on behalf of its parent company. As a result, the TCA requested that the Ministry of Foreign Affairs send the notification to the Turkish Embassy in Bern, the procedure it followed with respect to the Swiss Mir Trade. The Turkish Embassy in Bern failed, after months of effort, to locate Mir Trade13.

The Ministry of Foreign Affairs eventually suggested the notification be served through the Turkish Ministry of Justice in accordance with the international conventions discussed above.

In the meantime, while the TCA was trying to solve its notification problems in Glencore Istanbul, the Yioula matter was in the investigation phase, encompassing among others a Greek glass packaging company Yioula. The TCA had already requested that the Ministry of Justice send its investigation notification to Yioula pursuant to the international conventions. The Ministry of Justice, however, had rejected the requests, correctly observing that the international conventions' scope do not cover "administrative, social and financial documents"14. For that reason, the TCA chose not to involve the Ministry of Justice in Glencore Istanbul. The TCA after a couple of months found that Mir Trade had established a Turkish liaison office, on which the investigation report was served accordingly.

As a result, neither the investigation notice nor the subsequent investigation report was served on Glencore International and the Greek Yiolua in the respective investigations whereas Mir Trade was only served with the investigation report. Further, the TCA was unable to serve the investigation report on Krutrade as its liaison office had been closed in the meantime. Although Krutrade and Glencore International were found by the TCA to have violated the Competition Law through anti-competitive practices in the Turkish market, the TCA was unable to complete its investigation and a final decision was not rendered on the respective companies given the TCA's inability to fulfill its procedural obligation to affect both its investigation notice and investigation report15. With regards to Yioula, The TCA determined that the practices of the investigated companies did not restrict competition in Turkish markets. Accordingly, the failure of the service to Yioula did not affect the outcome of the decision.

In the Johnson&Johnson matter, the TCA had initiated an investigation against, among others, Johnson&Johnson Medical Limited located in the UK. It served its investigation notice on the Turkish liaison office of Ethicon Limited, a UK subsidiary of Johnson&Johnson. Johnson&Johnson participated in the proceedings but objected to the efficacy of the service made on its subsidiary's Turkish liaison office on the grounds that a liaison office, pursuant to the Competition Law, is not an "undertaking" and thus not subject to that law16. The TCA rejected the objection, arguing that liaison office's nature, whether an undertaking or not, was not relevant with regard to the adequacy of service. Further, the TCA took the position that the liaison office operated on Johnson&Johnson's behalf in Turkey, and can thus be properly served on Johson&Johnson's behalf17. Considering the liaison office in question was the liaison office of Ethicon Limited, and not of Johnson&Johnson, it appears the TCA acted in contradiction, at least on its face, of its previous practice in Glencore Istanbul, where the investigation notice served on a foreign company's subsidiary in Turkey was deemed defective. Therefore, Johnson&Johnson's objection may have been successful had it been based on the service on its subsidiary was inconsistent with the TCA's previous practices.

In Sun Express/Condor, the TCA, after receiving a leniency application18 initiated an investigation in 2010 against two airlines, the German Condor and Turkish Sun Express, of alleged anti-competitive practices with respect to their flights between Turkey and Germany. Even though the Ministry of Justice had previously rejected the TCA's request in Yioula, the TCA again tried to submit its Investigation Notice to Condor through the Ministry of Justice. Not surprisingly, the Ministry of Justice's response was the same, i.e. the international conventions' scope did not cover "administrative, social and financial documents". The TCA then requested that the Ministry of Foreign Affairs send the investigation notice to the Turkish Embassy in Berlin. The Turkish Embassy reported that the relevant authority responsible to serve the notification on the recipient in Berlin had not informed it as to the status of the service.

After failing in its previous two attempts to affect service, the TCA, by its own initiative, sent the notification to Condor by registered mail through the PTT, and the PTT served the document successfully on Condor. Upon the service by mail of the Investigation Notice, Condor submitted its defenses to the TCA. The TCA was able to move forward to decision, imposing administrative fines on Condor for anti-competitive practices under the Competition Law.

In Block Train, the TCA, also after receiving a leniency application, initiated an investigation in 2014 against, among others, the Swiss K+N Switzerland, the Greek K+N Greece and the Hungarian GYSEV, all of which operate in the rail freight forwarding services market. The TCA directly requested the Turkish Consulates in Zurich, Athens-Piraeus, and the Turkish Embassy in Budapest to serve the investigation notice on the respective foreign companies. Afterwards, the Consulates and the Embassy requested the relevant authorities to affect service as provided for in the local law of the countries in question, which was accomplished with respect to GYSEV and K+N Greece. The Turkish Consulate in Zurich, however, rejected the TCA's request, claiming erroneously the investigation notice should be served through Ministry of Justice pursuant to the international conventions, a procedure that contradicts with the practice of the Ministry of Justice and the express language of those conventions. No doubt frustrated, the TCA, as it did with regard to Condor, simply sent the notification to K+N Switzerland by the registered mail through the PTT, and the notification was served shortly thereafter. The TCA was able to proceed with the investigation and render its decision, determining in this case that the practices in question did not affect Turkish markets.

Which method is correct and what else could be done?

The applicable law is clear that administrative documents to be served in a foreign country must be sent directly to the Turkish Embassy or Consulate or through Ministry of Foreign Affairs. Finally, the Turkish Embassy or Consulate affects service as provided for in the local law of the country in question by means of the relevant authority responsible for the service in that country.

Accordingly, the opinion of the Ministry of the Foreign Affairs, expressed in the Glencore Istanbul and Glencore International matters, and expressed by the Turkish Consulate in Zurich in the Block Train matter, i.e. that the TCA is to serve its documents through the Ministry of Justice, would seem to have no legal basis. Had Turkey had an international agreement with the subject countries as to the service of the administrative documents as such, then the opinion would have been accurate.

In addition, the TCA's attempts, albeit arguably successful, to serve the documents by regular registered post through PTT, for companies located outside Turkey, is not a method provided for in the Notification Law. It would seem K+L Switzerland and Condor had the right to refuse the notification served through the regular registered post, but instead apparently choose to waive that right by making an appearance and participated in the proceedings. In other words, the TCA would not have been deemed to have fulfill its notification obligations, and would not have the jurisdiction to render an enforceable decision, had the foreign companies simply refused to participate in the proceedings due to inadequacy of the service. As shown by the matters discussed above, there exists no established practice for notifying the foreign companies as required by Articles 43 and 45 of the Turkish Competition Law. It should be noted that this is observed to be due to deficiencies in the law beyond the scope of this competition law and control of the TCA.

Unsuccessful attempts to notify foreign companies lead to loss of significant amount of time and resources. Investigation periods need to be extended and investigations end up taking significantly longer than usual. Further, it should be noted that although the foreign companies in the abovementioned decisions were all located in Europe, where geographically and logistically speaking Turkish authorities have relatively easy access, the TCA still often failed to affect the necessary service.

Turkey, to ensure it has the ability to protect itself from unfair competition by the companies located outside Turkey, needs to negotiate and execute international agreements governing the service of key administrative documents such as notices of the initiation of investigations and reports thereof. In this context, Decision No. 1/95 of the EC-Turkey Association Council19 explores the nature of the cooperation between the European Community, now the European Union, and Turkey in matters related to competition law. Article 43 of this decision states that Turkey or the Community, as the case may be, may request the other party's competition authority to initiate appropriate enforcement actions, if anti-competitive activities affecting the requesting party's markets are believed to be carried out on the territory of the requesting party. Although the Association Council Decision does not cover notifications and the competition authorities of the member states have no authority to notify the foreign companies located in their jurisdiction on behalf of another member state's competition authority, the Decision may serve as a roadmap for such agreements, according to which further agreements as to the service of documents by European and EU competition authorities can be executed between Turkey and, at least, the EU member states.


1 Act No: 4504 on the Protection of Competition, Article 2.

2 TCA's 02.09.2010 dated and 10-57/1141-430 numbered decision.

3 TCA's 11.09.2006 dated and 06-62/848-241 numbered decision.

4 TCA's 28.02.2007 dated and 07-17/155-50 numbered decision.

5 TCA's 07.05.2007 dated and 07-38/410-158 numbered decision.

6 TCA's 27.10.2011 dated and 11-54/1431-507 numbered decision.

7 TCA's 16.12.2015 dated and 15-44/740-267 numbered decision.

8 The Ministry of Foreign Affairs, on 7 October 2011, notified by letter to, among others, the TCA that, effective immediately, the documents to be served in a foreign country are to be directly sent to the concerned Turkish Embassy or Consulate, which then affects service as provided for in the local law of the country in question.

9 Pursuant to same Article, the TCA is also required to serve its additional report on the parties, which is prepared upon the parties' second written defenses; and request the parties' response to the additional report. Such requirement will not be discussed in this Article as the decisions herein did not involve any notification as to the additional report.

10 Constitution of the Republic of Turkey, Art. 36; European Convention on Human Rights, Art. 6, which Turkey is a party to.

11 Establishment of a liaison office of a foreign company is provided for under the Turkish Foreign Direct Investment Law for the purposes of, among others, communicating with and providing information to the associated company.

12 Article 25 of the Notification Law provides only that such documents are required to be sent to the relevant Turkish Embassy or Consulate; there is no mention of service using the PTT as an alternative for the companies located outside Turkey.

13 It is worth noting that in line with a suggestion by the Ministry of Foreign Affairs, formal cooperation requests were lodged with Swiss and Austrian competition authorities and the European Commission, all of which were rejected. Given the issues covered in these requests were significantly broader than those covered the notifications, those requests will not be covered in depth under this Article. The cooperation requests lodged with the foreign competition authorities includes, among others, initiating investigations against the companies concerned and forwarding the evidences found in these companies' premises to the TCA.

14 TCA's Glencore Istanbul decision, para. 330.

15 TCA's Glencore Istanbul decision, para. 2660 and Glencore International decision, para 240.

16 Scope of the Competition Law is stipulated under Article 2, and covers only undertakings. An undertaking is defined as "natural and legal persons who produce, market and sell goods or services in the market, and units which can decide independently and do constitute an economic whole" according to Article 3.

17 TCA's Johnson&Johnson decision, p. 32.

18 A leniency application is a tool to encourage whistle-blowing that, if made and accepted, offers a member of a cartel (an association of companies whose purpose is found to be the maintenance of high prices and otherwise the restriction of competition) the chance of total immunity from fines.

19 EC-Turkey Association Council was established in 1963 and aimed at securing Turkey's full membership in the EEC through the establishment in three phases of a customs union which would serve as an instrument to bring about integration between the EEC and Turkey.

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.

Baran Can Yildirim, LL.M.
Mehmet Salan
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
Font Size:
Mondaq on Twitter
Mondaq Sign Up
Gain free access to lawyers expertise from more than 250 countries.
Email Address
Company Name
Confirm Password
Mondaq Newsalert
Select Topics
Select Regions
Registration (please 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.


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.


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