Comparative Guides

Welcome to Mondaq Comparative Guides - your comparative global Q&A guide.

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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 the Law on Protection of Competition 4054. Law 4054 relies on Article 167 of the Turkish Constitution of 1982, which authorises the government to take appropriate measures to secure a free market economy. Article 4 of Law 4054 lays down the basic principles of cartel regulation.

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 division and concerted control of output or input.

Secondary legislation issued by the Turkish Competition Authority 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 sets out the range of the base fines for cartels. Under the Regulation on Active Cooperation for Detecting Cartels, 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.

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

Answer ... 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.

For more information about this answer please contact: Gönenç Gürkaynak 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 Turkish Competition Authority, a legal entity with administrative and financial autonomy, which consists of a board and five case units. The Competition Board is the decision-making body of the authority and is responsible, among other things, for deciding whether agreements, concerted practices and decisions of undertakings active in various markets restrict competition. The board has seven members and is seated in Ankara. The five case units each focus on all types of competition cases (ie, Article 4 cases including cartels, mergers and abuse of dominance) in certain industries.

A cartel matter is primarily adjudicated by the board. The relevant parties can also bring private action against cartels before the courts for their damages. Due to a treble damages clause which allows applicants to obtain three times their losses as compensation, private antitrust litigation is becoming increasingly common in the cartel enforcement arena. In practice, the courts do not usually analyse whether there is an anti-competitive agreement or concerted practice, and defer to the board to render its opinion on the matter, thus treating the issue as a prejudicial question. As the courts usually wait for the board to render its decision rather than deciding on the matter themselves, a court decision can be obtained in a shorter period in follow-on actions.

For more information about this answer please contact: Gönenç Gürkaynak 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 Competition Authority does not officially publish specific statistics on cartel investigations, its investigations concerning horizontal violations under the scope of Article 4 of Law 4054 provide some insight in this regard.

The authority has not yet published its annual report for 2018. However, its annual report for 2017 stated that the board decided a total of 80 cases relating to competition law violations in 2017. Of those 80 cases, 37 related to Article 4, 29 cases related to both Article 4 and Article 6 (abuse of dominant position) and one case concerned allegations regarding Article 4, Article 6 and Article 7 (merger control).

The board issued monetary fines amounting to a total of TL 41,320,930 and TL 38,776,937 for cases analysed under Article 4 and TL 2,543,993 for cases analysed under Article 4 and Article 6. These monetary fine figures of 2017 show that the Board has in total imposed roughly four times less monetary fines in Article 4 cases while the monetary fines imposed in Article 6 cases have tripled. In 2017 the board also imposed monetary fines in cases that were analysed under both Article 4 and Article 6 for the first time in five years.

Since 1999, the Board has concluded 1,224 investigations.

Although 2018 saw no ground-breaking cartel cases or record fines for cartel activity, one recent decision (Orthodontic Products, 18-09/157-77, 29 March 2018) concerned allegations that nine undertakings had participated in price fixing relating to the sale of orthodontic products and had violated Article 4 of Law 4054. In this recent preliminary investigation, the authority accessed employees’ WhatsApp conversations from their private mobile phones during an on-site inspection. This landmark decision has triggered a debate on the limits of case handlers’ authority during on-site inspections and employees’ right to privacy.

Another noteworthy decision on cartels concerned an investigation against 13 financial institutions – including local and international banks – active in corporate and commercial banking in Turkey (Corporate Loans, 17-39/636-276, 28 November 2017). The investigation started when Bank of Tokyo-Mitsubishi UFJ Turkey AÞ (BTMU) filed a leniency application in relation to an alleged cartel executed through the exchange of competitively sensitive information on loan conditions. However, the board ultimately found no cartel, while concluding that some undertakings had indeed exchanged competitively sensitive information. The board imposed administrative monetary fines on ING Bank AÞ and The Royal Bank of Scotland Plc in the amount of TL 21.1 million and TL 66,000 respectively, calculated on the basis of their annual turnover in 2016. Contrary to its decisional practice and the explicit rule in the Regulation on Active Cooperation for Detecting Cartels that the leniency regime applies to cartel cases only, the board provided full immunity to BTMU.

In Burdur Province Freelance Mechanical Engineers (17-41/640-279, 14 December 2017), the board investigated 16 freelance mechanical engineers to determine whether they had violated Article 4 of Law 4054 through a profit-sharing cartel. One of the parties to the investigation applied for leniency during the preliminary investigation. The board concluded that 14 of the freelance mechanical engineers had engaged in a profit-sharing cartel. The board granted the leniency applicant full immunity from fines, while also relieving one of the freelance mechanical engineers from an administrative monetary fine.

Another decision concerned allegations that 10 undertakings producing ready-mix concrete in the Ýzmir region in Turkey had artificially increased their prices by entering into an anti-competitive agreement or concerted practice (Ýzmir Ready-mix Concrete, 17-27/452-194, 22 August 2017). The board took into account the economic evidence showing no concerted practice and concluded that it was implausible that the parties could have reached agreement within the alleged duration of the infringement, which was three months.

In a more recent case (Mosaþ, 18-20/356-176, 21 June 2018), the board imposed an administrative monetary fine on Mosaþ Akýllý Ulaþým Sistemleri AÞ’s for obstructing an on-site inspection in the scope of a cartel investigation concerning alleged bid rigging. During the on-site inspection conducted at Mosaþ’s premises, employees cut off the electricity and internet connection, deleted emails, denied access to computers and prevented case handlers from making copies of the reviewed documents. The board imposed two separate administrative monetary fines on Mosaþ:

  • a fixed fine for obstructing the on-site inspection, in the amount of 0.5% of its 2017 turnover; and
  • a proportional fine of 0.05% of its 2017 turnover for each day that the violation continued (ie, until Mosaþ invited the authority for another on-site inspection).

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