Comparative Guides

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

Our Comparative Guides provide an overview of some of the key points of law and practice and allow you to compare regulatory environments and laws across multiple jurisdictions.

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4. Results: Answers
Cartels
3.
Investigations – general
3.1
On what grounds may the enforcement authorities commence an investigation?
Turkey

Answer ... The Competition Board is entitled to launch an investigation into an alleged cartel ex officio or in response to a notice or complaint. A notice or complaint may be submitted orally or through a petition. The Competition Authority has an online system through which complaints may be submitted via an online form on its official website. The 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, the board will initiate a full investigation. Although this is exceptional in practice, the board may also initiate a full investigation directly without a preliminary investigation.

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

For more information about this answer please contact: Gönenç Gürkaynak from ELIG Gürkaynak Attorneys-at-Law
3.2
What investigatory powers do the enforcement authorities have in conducting their investigation?
Turkey

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 currently TL 26,027. 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:

  • examine the books, paperwork and documents of undertakings and trade associations and, if necessary, take copies of these materials;
  • request from undertakings and trade associations written or oral explanations; and
  • conduct on-site investigations at the premises of the relevant undertakings.

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 are required to carry with them an authorisation certificate when conducting on-site inspections, showing the subject matter and purpose of the inspection and explaining that an administrative fine shall 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.

For more information about this answer please contact: Gönenç Gürkaynak from ELIG Gürkaynak Attorneys-at-Law
3.3
To what extent may the enforcement authorities cooperate with their counterparts in other jurisdictions during their investigation? How common is such cooperation in practice?
Turkey

Answer ... Article 43 of Decision 1/95 of the EC–Turkey Association Council authorises the Competition Authority 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 authority to apply relevant measures to restore competition in relevant markets.

There are also a number of bilateral cooperation agreements between the authority and the competition agencies in other jurisdictions (eg, Romania, Korea, Bulgaria, Portugal, Bosnia-Herzegovina, Russia, Croatia and Mongolia) on cartel enforcement matters. The authority additionally has close ties with the Organisation for Economic Co-operation and Development, the United Nations Conference on Trade and Development, the World Trade Organization, the International Competition Network and the World Bank.

For more information about this answer please contact: Gönenç Gürkaynak from ELIG Gürkaynak Attorneys-at-Law
3.4
Is there an opportunity for third parties to participate in the investigation?
Turkey

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, they can apply for information under Law 4982 on the Right to Information. On third parties’ intervention in the appeal of board decisions, see question 7.2

For more information about this answer please contact: Gönenç Gürkaynak from ELIG Gürkaynak Attorneys-at-Law
3.5
What are the general rights and obligations of the enforcement authorities during the investigation?
Turkey

Answer ... See questions 3.2 and 3.6.

For more information about this answer please contact: Gönenç Gürkaynak from ELIG Gürkaynak Attorneys-at-Law
3.6
What are the general rights and obligations of the target company during the investigation?
Turkey

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 on Regulation of Right to Access to File and Protection of Commercial Secrets. Communiqué 2010/3 places the burden of identifying commercial secrets and justifying such classification on undertakings. Therefore, undertakings must request confidentiality from the Competition Authority and justify the reasons for confidentiality of the information or document in writing. Under Article 15(2) of Communiqué 2010/3, the authority 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 authority 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.

For more information about this answer please contact: Gönenç Gürkaynak from ELIG Gürkaynak Attorneys-at-Law
3.7
What principles of attorney-client privilege apply during a cartel investigation?
Turkey

Answer ... Correspondence with an independent attorney (ie, an attorney without an employment relationship with the relevant undertaking, regardless of admission to the Turkish Bar) 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 (09-16/374-88, 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 (14-29/496-262, 20 August 2014), the board took another major step in favour of attorney-client privilege by elaborating on the conditions of the European Court of Justice 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 (15-42/690- 259, 2 December 2015) and Enerjisa (16-42/686-314, 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.

That said, the Eighth Administrative Chamber of the Ankara Regional Administrative Court issued a unique decision on attorney-client privilege in 2018 (Enerjisa, 2018/1236, 10 October 2018). The decision concerned an internal review report of outside counsel for competition law compliance purposes, which had been prepared before the authority 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.

For more information about this answer please contact: Gönenç Gürkaynak from ELIG Gürkaynak Attorneys-at-Law
3.8
Are details of the investigation publicly announced? If so, what principles of confidentiality apply?
Turkey

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 Competition Authoroty and justify their reasons for the confidentiality of the information or document in writing. The authority may not consider confidentiality requests relating to information and documents that are indispensable as evidence of competition infringement. In such cases, the authority 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.

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