Answer ... The Competition Board is entitled to launch an investigation into an alleged cartel ex officio or in response to a notice, complaint or leniency application. A notice or complaint may be submitted orally or through a petition. The Turkish Competition Authority (TCA) has an online system through which complaints may be submitted via an online form on its official website. The Competition Board will commence a preliminary investigation if the notice or complaint concerns an alleged violation within the scope of Law 4054. If, after this preliminary investigation, the board finds these allegations “serious and sufficient” under Article 42 of Law 4054, it will initiate a fully fledged investigation. Although this is exceptional in practice, the board may also initiate a fully fledged investigation directly without a preliminary investigation.

Additionally, for the standard of proof adopted by the Competition Board, see question 4.8.

Answer ... The Competition Board and the case handlers authorised by the board are entitled to request all information deemed necessary from all public institutions and organisations, undertakings and trade associations. Officials of these bodies, undertakings and trade associations are obliged to provide the necessary information within the period specified by the board. Failure to comply with a request for information may lead to a turnover-based fine of 0.1% of the turnover generated in the financial year preceding the date of the fining decision (or, if this is not available, the turnover generated in the financial year closest to the date of the fining decision). The minimum fine is TL 47,409 until 31 December 2022. Where incorrect or incomplete information is provided in response to a request for information, the same penalty may be imposed.

Article 15 of Law 4054 also authorises the board to conduct on-site investigations and dawn raids. Accordingly, the board is entitled to:

• perform on-site inspections and examine records, paperwork and all sorts of documents;
• take copies of such documents; and
• request written or oral explanations on the premises of the subject entity.

The TCA can also:

• inspect and make copies of all information and documents held on companies’ electronic media and information systems; and
• investigate computer records, phone records, emails and other correspondence (eg, WhatsApp messages), including deleted items.

Refusal to grant case handlers access to business premises may lead to a fixed fine of 0.5% of the Turkish turnover generated in the financial year preceding the date of the fining decision (or, if this is not available, the turnover generated in the financial year closest to the date of the fining decision). It may also lead to a fine of 0.05% of the Turkish turnover generated in the financial year preceding the date of the fining decision for each day of violation (or, if this is not available, the turnover generated in the financial year closest to the date of the fining decision).

Case handlers can obtain a court order to conduct a dawn raid where the relevant undertaking refuses to allow the dawn raid. Other than that, case handlers do not need a court order for dawn raids.

While Law 4054 requires the relevant undertaking’s employees to provide oral explanations during dawn raids, in practice, case handlers will allow a delay in responding, so long as there is quick written follow-up correspondence. Therefore, in practice, employees can avoid providing answers during dawn raids on information they are not certain of at the time, provided that a written response is submitted within a mutually agreed timeframe.

Pursuant to Article 15 of Law 4054, case handlers must carry with them an authorisation certificate when conducting on-site inspections, detailing the subject matter and purpose of the inspection, and explaining that an administrative fine will be imposed should incorrect information be provided. The case handlers’ authorisation for dawn raids is therefore limited to the scope set out in this certificate.

Answer ... Article 43 of Decision 1/95 of the EC-Turkey Association Council authorises the TCA to notify and request the European Commission (Directorate-General of Competition) to apply relevant measures if it believes that cartels organised in the territory of the European Union are adversely affecting competition in Turkey. The provision grants reciprocal rights and obligations to the parties (the European Union and Turkey), and thus the European Commission can likewise request the TCA to apply relevant measures to restore competition in relevant markets. There are also a number of bilateral cooperation agreements between the TCA and competition agencies in other jurisdictions on cartel enforcement matters.

Answer ... The Competition Board is entitled to request all information it deems necessary from all public institutions and organisations, undertakings and trade associations. Officials of these bodies, undertakings and trade associations may participate in the investigation process by providing the necessary information. Although third parties cannot request access to the file under Communiqué 2010/3 on Regulation of the Right to Access Files and the Protection of Commercial Secrets, they can apply for information under Law 4982 on the Right to Information. On third parties’ intervention in appeals of Competition Board decisions, see question 7.2

Answer ... See questions 3.2 and 3.6.

Answer ... See question 3.2. In addition, target companies are entitled to protect confidential or proprietary information. The main legislation regarding protection of commercially sensitive information is Article 25(4) of Law 4054 and Communiqué 2010/3. Communiqué 2010/3 places the burden of identifying commercial secrets and justifying such classification on undertakings. Therefore, undertakings must request confidentiality from the Competition Board and justify the reasons for confidentiality of the information or document in writing. Under Article 15(2) of Communiqué 2010/3, the TCA may not take confidentiality requests into consideration if they relate to information and documents that are indispensable as evidence of competition infringement. In such cases, the TCA can disclose information and documents that could be considered as trade secrets, by taking into account the balance between the public interest and private interest, and in accordance with the principle of proportionality.

Additionally, target companies have the right to access the case file under two legal grounds in the Turkish competition law regime: Law 4982 on the Right to Information and Communiqué 2010/3. Article 5/1 of Communiqué 2010/3 provides that the right to access the case file will be granted upon written request of the parties within due time during the investigation. This gives the applicant access to information and documents in the case file that do not qualify as internal documents of the authority or trade secrets of other firms or trade associations. Third parties cannot request access to the case file under Communiqué 2010/3, but can apply for information under Law 4982.

Answer ... Correspondence with an independent attorney may benefit from attorney-client privilege, provided that it relates to the right of defence; communications with in-house counsel are not covered by this privilege. In Sanofi Aventis (Decision 09-16/374-88 of 20 April 2009), the Competition Board recognised that the principles adopted by the European Court of Justice in AM&S Europe v European Commission (Case 155/79 [1982] ECR 1575) could apply to documents protected by attorney-client privilege in Turkey. In CNR/NTSR (Decision 14-29/496-262 of 20 August 2014), the board took another major step in favour of attorney-client privilege by elaborating on the conditions of the Court of Justice of the European Union under which privilege will apply, and concluding that the same rules will apply under Turkish competition law. Additionally, the board discussed the basic principles of legal professional privilege, considering its definition, scope, enforcement and boundaries, in Dow (Decision 15-42/690- 259 of 2 December 2015) and EnerjiSA (Decision 16-42/686-314 of 6 December 2016). Accordingly, if a document includes correspondence between the undertaking and external counsel (who is not an employee of the undertaking) and relates to the exercise of the undertaking’s right of defence, that document will be protected under attorney-client privilege. Accordingly, if the document includes counsel’s advice regarding how to infringe competition law or how to cover up an infringement, this will not be protected by privilege. The Competition Board also indicated in Huawei (Decision 19-40/670-288 of 14 November 2019) and Çiçeksepeti (Decision 20-32/405-186 of 2 July 2020) that correspondence between an undertaking and its in-house counsel will not benefit from attorney-client privilege.

That said, the Eighth Administrative Chamber of the Ankara Regional Administrative Court issued a unique decision on attorney-client privilege in 2018 (EnerjiSA, Decision 2018/1236 of 10 October 2018). The decision concerned an internal review report of outside counsel for competition law compliance purposes, which had been prepared before the TCA opened an investigation against EnerjiSA. The report was taken by the case handlers during a dawn raid conducted in the scope of the investigation against this company at a later stage. The court held that although the document was correspondence “between an independent attorney and the undertaking”, it was not protected under attorney-client privilege given that “it was not directly related to the right to defence”, due to its preparation prior to an investigation. In line with this, the Competition Board resolved in Warner Bros (Decision 19-04/36-14 of 17 January 2019) that documents obtained during an on-site inspection were dated before the initiation of the relevant preliminary investigation by the board and thus could not benefit from attorney-client privilege, given that they were not directly related to the right to defence.

In the Competition Board’s relatively recent DSM Grup decision (Decision 21-24/287-130 of 29 April 2021), DSM Grup requested the TCA to return documents which had been seized during an on-site inspection and considered to benefit from attorney-client privilege. However, the Competition Board rejected the request on the grounds that the relevant documents did not benefit from such privilege since they did not qualify as correspondence with an independent attorney related to the exercise of the undertaking’s right of defence.

Answer ... Article 53 of Law 4054 provides that “decisions of the Board are published on the website of the Authority in such a way not to disclose the trade secrets of the parties”. That said, undertakings must request confidentiality from the TCA and justify their reasons for the confidentiality of the information or document in writing. The TCA may not consider confidentiality requests relating to information and documents that are indispensable as evidence of competition infringement. In such cases, the TCA may disclose such information and documents that could be considered as trade secrets, by taking into account the balance between the public interest and private interest, and in accordance with the principle of proportionality.