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4. Results: Answers
Cartels
1.
Legal and enforcement framework
1.1
Which legislative and regulatory provisions apply to cartels in your jurisdiction?
Turkey

Answer ... The main legislation on cartels is Law 4054 on the Protection of Competition. Article 4 of Law 4054 lays down the essential principles of cartel regulation. Law 4054 was relatively recently subject to certain amendments which passed through the Grand National Assembly of Turkey on 16 June 2020, and entered into force on 24 June 2020.

Article 4 is essentially modelled on Article 101(1) of the Treaty on the Functioning of the European Union. It prohibits all agreements between undertakings, decisions by associations of undertakings and concerted practices that have (or may have) as their object or effect the prevention, restriction or distortion of competition within a Turkish product or services market, or a part thereof. As a general provision, Article 4 prohibits all forms of restrictive agreements, including any form of cartel. It also sets forth a non-exhaustive list of anti-competitive practices that potentially violate Law 4054, which include most common types of cartels, such as price fixing, market sharing and concerted control of output or input.

Secondary legislation issued by the Turkish Competition Authority (TCA) also includes specific provisions on cartels. The Regulation on Fines to Apply in Cases of Agreements, Concerted Practices and Decisions Limiting Competition and Abuse of Dominant Position (‘Regulation on Fines’) sets out the range of the base fines for cartels. Under the Regulation on Active Cooperation for Detecting Cartels (‘Regulation on Active Cooperation’), cartel members that actively cooperate with the authority may be granted full immunity or a discounted fine, depending on the timing of their leniency application.

Cartel-type violations fall within the scope of ‘hard-core violations’ that cannot benefit from the de minimis principle set out in Communiqué 2021/3 on De Minimis Applications for Agreements, Concerted Practices and Decisions of Associations of Undertakings and Communiqué 2021/2 on Remedies for Preliminary Investigations and Investigations on Anti-competitive Agreements, Concerted Practices, Decisions and Abuse of Dominant Position.

For more information about this answer please contact: Gönenç Gürkaynak Esq. from ELIG Gürkaynak Attorneys-at-Law
1.2
Do any special regimes apply to cartels in specific sectors?
Turkey

Answer ... No sector-specific violations or defences are provided under the framework of Law 4054. There are no exemptions and/or sector-specific rules in terms of cartel cases. Along with the other provisions of Law 4054, the rules governing cartels apply to all entities, provided that they qualify as an ‘undertaking’ within the meaning of Law 4054. Under Article 3 of the law, ‘undertakings’ are “real and legal persons who produce, market and sell goods or services in the market, as well as units that can make independent decisions and form an economic whole”. Law 4054 does not exempt any sector or activity as a whole from its scope of application. State-owned entities are also captured by Article 4, as confirmed by various decisions of the Turkish Competition Board.

For more information about this answer please contact: Gönenç Gürkaynak Esq. from ELIG Gürkaynak Attorneys-at-Law
1.3
Which authorities are responsible for enforcing the cartel legislation?
Turkey

Answer ... Competition law in Turkey is enforced by the TCA, a legal entity with administrative and financial autonomy, which consists of the Competition Board and six divisions with sector-specific focuses. The Competition Board is the decision-making body of the TCA and is responsible, among other things, for deciding whether agreements, concerted practices and decisions of undertakings active in various markets restrict competition.

For more information about this answer please contact: Gönenç Gürkaynak Esq. from ELIG Gürkaynak Attorneys-at-Law
1.4
How active are the enforcement authorities in investigating and taking action against cartels in your jurisdiction? What are the statistics regarding past and ongoing cartel investigations? What key decisions have the enforcement authorities adopted most recently?
Turkey

Answer ... Although the TCA does not officially publish specific statistics solely on cartel investigations, its investigations concerning horizontal violations within the scope of Article 4 of Law 4054 provide some valuable insight in this regard.

The TCA’s annual report for 2021 stated that the Competition Board decided a total of 74 cases relating to competition law violations in 2021. Of those, 40 cases were subject to Article 4 of Law 4054 and 11 cases were subject to both Article 4 and Article 6 of Law 4054. The Competition Board concluded 44 of the cases through fully fledged investigations and 29 cases through preliminary investigations; while one case was concluded in the first examination without opening a preliminary investigation. The Competition Board rejected the allegations of violations of competition law in 44 of those cases; while 25 cases resulted in the imposition of monetary fines and five concluded with commitments proposed by undertakings. The sectors that came under the most intensive scrutiny were, in the following order:

  • food (eg, production, wholesale, retail);
  • machines (eg, including household appliances, electronics);
  • information technologies and platform services;
  • healthcare services; and
  • chemicals and mining.

Finally, the Competition Board issued monetary fines amounting to a total of TL 4,355,666,695 in 2021.

One of the recent prominent cases was the Competition Board’s investigation into fast-moving consumer goods chain stores (Decision 21-53/747-360 of 28 October 2021). The Competition Board concluded that A101, Şok, Carrefour SA, BİM and Migros had been exchanging competitively sensitive information and setting retail prices; and that Savola had facilitated the price coordination between these retailers as their common supplier. Accordingly, the Competition Board determined that the relevant undertakings had formed a hub and spoke cartel and imposed administrative monetary fines on the grounds of violation of Article 4 of Law 4054.

In harmony with its continuing focus on the fast-moving consumer goods sector, the Competition Board concluded another investigation just before the end of 2022 (Decision 22-55/863-357 of 15 December 2022) following its recent investigation (Decision 21-53/747-360 of 28 October 2021). As a result of this latest investigation, the Competition Board imposed administrative monetary fines based on a hub and spoke cartel once again (also in conjunction with resale price maintenance practices) while also fortifying its decisional practice in terms of the application of ne bis in idem principle by way of not imposing administrative monetary fines to certain chain stores and suppliers/retailers.

The Competition Board’s recent healthcare sector decision (Decision 22-10/152-62 of 24 February 2022) is a significant example of its enforcement activity: it investigated 29 undertakings and associations of undertakings and imposed monetary fines under three different violations. Considering price fixing regarding freelance doctors and other services as a single violation, the Competition Board concluded that six undertakings had established a pricing cartel in two different cities. On the other hand, the Competition Board found that the practices of 16 undertakings aimed at limiting competition in the labour market by preventing personnel transfers and wage fixing constituted another single violation of Article 4 of Law 4054. Finally, the Competition Board imposed administrative monetary fines on eight undertakings on the grounds of exchanging competitively sensitive information; seven undertaking were found to have been directly active in information exchange, while one was a facilitator.

Importantly, the Competition Board’s Beypazarı/Kınık decisions (Decision 22-17/283-128 of 14 April 2022 and Decision 22-23/379-158 of 18 May 2022) constitute the first combined application of the settlement and leniency mechanisms. The Competition Board applied a 25% reduction (the highest possible reduction) under the Regulation on the Settlement Procedures to be Applied during Investigations Regarding Anti-competitive Agreements, Concerted Practices and Decisions as well as Abuse of Dominance (‘Settlement Regulation’) and a 35% reduction under the leniency application, reducing the administrative monetary fine by 60% in total. Thus, the monetary fines imposed on Kınık were significantly reduced from TL 2,322,328.75 to TL 928,931.50. For Beypazarı, which applied for lenience after Kınık, the monetary fines were also reduced significantly, from TL 21,885,323.28 to TL 9,848,395.48.

For more information about this answer please contact: Gönenç Gürkaynak Esq. from ELIG Gürkaynak Attorneys-at-Law
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Cartels