Answer ... Similar to Article 101(1) of the Treaty on the Functioning of the European Union (TFEU), Article 4 of Law 4054 does not define the term ‘cartel’ explicitly. However, Article 4 of Law 4054 prohibits all kinds of restrictive agreements, including any form of cartel agreement. Article 4 of Law 4054 also prohibits any form of agreement that has the potential to prevent, restrict or distort competition. Additionally, Article 4 of Law 4054 sets out a non-exhaustive list which provides examples of possible restrictive agreements.

In line with Article 101(1) TFEU, Article 4 of Law 4054 includes price-fixing, market allocation and refusal to deal agreements as examples of restrictive agreements that have consistently been deemed to be anti-competitive per se.

Furthermore, cartels are explicitly defined by the secondary legislation of the Turkish Competition Authority (TCA) – namely the Regulation on Fines and the Regulation on Active Cooperation. According to these regulations, “agreements restricting competition and/or concerted practices between competitors for fixing prices; allocation of customers, providers, territories or trade channels; restricting the amount of supply or imposing quotas, and bid rigging” are prohibited as cartel activity (see Article 3 of the Regulation on Fines and Article 3 of the Regulation on Active Cooperation).

Answer ... As explained in question 2.1, according to the Regulation on Fines and the Regulation on Active Cooperation, “agreements restricting competition and/or concerted practices between competitors for fixing prices; allocation of customers, providers, territories or trade channels; restricting the amount of supply or imposing quotas, and bid rigging” are considered as cartels (see Article 3 of the Regulation of Fines and Article 3 of the Regulation on Active Cooperation).

Answer ... The Turkish cartel legislation is administrative and civil in nature, not criminal. That said, certain antitrust violations, such as bid rigging in public tenders and illegal price manipulation, may also be criminally prosecutable, depending on the circumstances.

Answer ... Law 4054 applies to ‘undertakings’ and ‘associations of undertakings’. An ‘undertaking’ is defined as a single integrated economic unit that is capable of acting independently in the market to produce, market or sell goods and services. Law 4054 therefore applies to individuals and corporations alike, if and to the extent that they act as an undertaking within the meaning of Law 4054.

Additionally, pursuant to Article 16 of Law 14 and Article 8 of the Regulation on Fines, employees or members of executive bodies of undertakings or associations of undertakings that had a determining effect on a cartel may also be fined between 3% and 5% of the fine imposed on the relevant undertaking or association of undertakings.

Answer ... Turkey is an ‘effect theory’ jurisdiction. According to Article 2 of Law 4054, the Competition Board has jurisdiction over any cartel that affects Turkish markets, regardless of:

• the nationality of the cartel members;
• where the cartel activity has taken place; and
• whether the members have a subsidiary in Turkey.

The Competition Board has refrained from declining jurisdiction over non-Turkish cartels or cartel members in the past, as long as there has been an effect on the Turkish markets (see The Suppliers of Rail Freight Forwarding Services for Block Trains and Cargo Train Services, Decision 15-44/740-267 of 16 December 2015; Güneş Ekspres/Condor, Decision 11-54/1431-507 of 27 October 2011; and Imported Coal, Decision 10-57/1141-430 of 2 September 2010).

Answer ... As explained in question 2.5, Article 2 of Law 4054 captures all restrictive agreements, decisions, transactions and practices to the extent they affect a Turkish market, regardless of where the conduct takes place. That said, the specific circumstances surrounding indirect sales are not tried under Turkish cartel rules. Article 2 of Law 4054 at least supports an argument that the Turkish cartel regime does not extend to indirect sales because the cartel activity that takes place outside of Turkey does not in and of itself produce effects in Turkey.

Additionally, it is fair to say that export cartels do not fall within the scope of jurisdiction of the Authority as per Article 2 of Law 4054. In Poultry Meat Producers (Decision 09-57/1393-362 of 25 November 2009), the TCA launched an investigation into allegations that included, among other things, an export cartel. The Competition Board found that export cartels are not sanctioned as long as they do not affect the markets of the host country. Although some other decisions (Paper Recycling, Decision 13-42/538-238 of 8 July 2013) suggest that the TCA might sometimes be inclined to claim jurisdiction over export cartels, it is fair to assume that an export cartel would fall outside of the TCA’s jurisdiction if and to the extent that it does not produce an impact on Turkish markets.

Answer ... The Competition Board can impose administrative monetary fines on a cartel within eight years of the date of the infringement. If cartel infringement is ongoing, this eight-year period is counted from the date on which the infringement ceases or is repeated. The eight-year limitation period is suspended where the board takes any action to investigate a claimed cartel infringement. In a recent decision concerning the welding industry, the Competition Board found that three undertakings had entered into a price-fixing agreement in 2011 (Decision 21-20/247-104 of 8 April 2021). That said, the Competition Board imposed no administrative fines on the undertakings, given that the evidence that demonstrated the competition law violation was time-barred and there was no evidence of a violation post 2011.

In private litigation, the general provisions of the Turkish Code of Obligations are applicable with regard to limitation periods. Accordingly, a damages claim against a cartel can be brought before a court within 10 years of the event which gave rise to the damage to the plaintiff. The prosecution of criminal offences (eg, bid rigging and illegal price manipulation) is subject to the criminal statute of limitations, which may vary depending on the severity of the sentence that may be imposed.