Comparative Guides

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4. Results: Answers
Cartels
4.
Investigations – step by step
4.1
What initial steps do the enforcement authorities take to commence a cartel investigation?
Turkey

Answer ... See question 3.1. During a preliminary investigation, unless there is a dawn raid, the undertakings concerned are not notified that they are under investigation. Dawn raids and other investigatory tools (eg, formal information request letters) are used during this preliminary investigation process. At the end of this preliminary stage, a preliminary investigation report of the case handlers will be submitted to the Competition Board within 30 days of a pre-investigation decision being taken by the board. The board will then decide within 10 days whether to launch a formal investigation. If the board decides to initiate an investigation, it will send notice to the undertakings concerned within 15 days.

Although this is exceptional in practice, the board may also initiate a full investigation directly without a preliminary investigation. The board has opened a direct investigation in only a few instances, such as the investigation against Türk Telekomünikasyon Aª (02-60/755-305, 2 October 2002).

For more information about this answer please contact: Gönenç Gürkaynak from ELIG Gürkaynak Attorneys-at-Law
4.2
Are dawn raids commonly conducted in your jurisdiction? If so, what are the pre-conditions for conducting a dawn raid? When, where and by whom are they conducted? Do the enforcement authorities have the power to search private as well as company premises?
Turkey

Answer ... See Question 3.2.

Pursuant to Article 15 of Law 4054, the Competition Authority can conduct dawn raids “at undertakings and associations of undertakings”. This should be (and is in practice) interpreted as the company premises only, since Article 21 of the Turkish Constitution provides that no domicile may be entered or searched without a warrant from a court on certain grounds, or unless there is a written order of an agency authorised by law in cases where delay is prejudicial, again on certain grounds. Also, the decision of the competent authority shall be submitted for the approval of the court. The authority is not among the agencies authorised to search premises.

For more information about this answer please contact: Gönenç Gürkaynak from ELIG Gürkaynak Attorneys-at-Law
4.3
What powers do officers have during the dawn raid? Are there any limitations on these powers?
Turkey

Answer ... See question 3.2.

For more information about this answer please contact: Gönenç Gürkaynak from ELIG Gürkaynak Attorneys-at-Law
4.4
What are the rights and obligations of the target company and any individuals targeted during a dawn raid?
Turkey

Answer ... As explained in question 3.2, Law 4054 requires the relevant undertaking’s employees to provide oral explanations during dawn raids, although 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.

The relevant parties have a right to legal counsel. The company’s legal counsel can be present in order to supervise the inspection. Counsel may be a company lawyer and/or an independent lawyer. That said, case handlers of the Competition Authority who conduct the dawn raid are not obliged to wait for the undertaking’s counsel to assist with the dawn raid. Indeed, in a recent decision (Çekok Gýda, 18-04/56-31, 08 February 2018) in which the board imposed a fine on an undertaking for obstructing a dawn raid, the board dismissed an argument that the delay was caused by the wait for external counsel to arrive.

For more information about this answer please contact: Gönenç Gürkaynak from ELIG Gürkaynak Attorneys-at-Law
4.5
What evidence can be seized during a dawn raid? Do the enforcement authorities have the power to interview witnesses and take statements during a dawn raid?
Turkey

Answer ... See question 3.2.

For more information about this answer please contact: Gönenç Gürkaynak from ELIG Gürkaynak Attorneys-at-Law
4.6
How can a company best prepare itself for dawn raids? What best practices should it follow in the event of a dawn raid?
Turkey

Answer ... In order to avoid the risk of an administrative monetary fine, case handlers should be allowed to access business premises and examine the books, paperwork and documents of undertakings, and if necessary take copies of the same without prejudice to attorney-client privilege.

As stated in question 4.4, the company’s legal counsel can be present in order to supervise the inspection. The lawyer may be a company lawyer and/or an independent lawyer. During a dawn raid, legal counsel should assist the client without obstructing the inspection of the case handlers. In addition, legal counsel should supervise the inspection and intervene as necessary if case handlers exceed the scope of their authorisation during the dawn raid. The most common reasons for the intervention of legal counsel during a dawn raid include preventing the case handlers from obtaining documents that are protected by attorney-client privilege or outside the scope of the relevant investigation.

For more information about this answer please contact: Gönenç Gürkaynak from ELIG Gürkaynak Attorneys-at-Law
4.7
What are the next steps in the cartel investigation following a dawn raid? What timeframe do these typically follow?
Turkey

Answer ... If the dawn raid is conducted during a preliminary investigation, this investigation shall be completed within 30 calendar days of the date on which the Competition Board opens the preliminary investigation. At the end of this period, the case team will prepare a so-called ‘preliminary investigation report’ for the board, explaining its findings and including its recommendation on whether to proceed with a full investigation. The board will decide whether to launch a full investigation within 10 calendar days. If the board decides to initiate a full investigation, it will send notice to the undertakings concerned. The parties then have 30 calendar days to submit their first written defence against the investigation notice. The investigation is completed within six months with the issue of the case team’s investigation report (the equivalent of the European Commission’s statement of objections). If deemed necessary, this period may be extended by the board for an additional period of up to six months.

Once the investigation report has been served on the parties, they have 30 calendar days to respond, extendable for another 30 days (second written defence). The case team then has 15 days to prepare an opinion concerning the second written defence. The parties will have another 30-day period to reply to the additional opinion (third written defence), which can be extended for an additional 30 days. Once the parties’ responses to the additional opinion have been submitted to the authority, the investigation process will be completed (ie, the written phase of the investigation involving claim or defence exchange closes on submission of the third written defence).

After the third written defence, an oral hearing may be held ex officio or upon request by the parties. Oral hearings are held within between 30 and 60 days following completion of the investigation process under Communiqué 2010/2 on Oral Hearings Before the Board. The board will render its final decision within 15 calendar days of the hearing if an oral hearing is held or within 30 calendar days of completion of the investigation process if no oral hearing is held. Any appeal must be brought within 60 calendar days of official service of the reasoned decision. It usually takes around three to four eight months (from announcement of the final decision) for the board to serve a reasoned decision on the counterpart.

For more information about this answer please contact: Gönenç Gürkaynak from ELIG Gürkaynak Attorneys-at-Law
4.8
What factors will the enforcement authorities consider in assessing whether cartel activity has taken place?
Turkey

Answer ... The standard of proof applied by the Competition Board in considering whether a cartel exists is frequently criticised as too low. In order to prove an undertaking’s participation in cartel activity, the board must demonstrate that there was such cartel activity or, in the case of multilateral discussions or cooperation, that the particular undertaking was a participant. The board has established an extremely low standard of proof concerning cartel activity, with a broad interpretation of the Competition Law and especially Article 4, which states that conduct whose object or effect is to restrict competition is prohibited. The standard of proof is even lower insofar as concerted practices are concerned. In practice, if parallel behaviour is established, a concerted practice might readily be inferred and the undertakings concerned might be required to prove that the parallel behaviour is not the result of a concerted practice, but is rather based on economic and rational business decisions. Law 4054 provides for a ‘presumption of concerted practice’, which enables the board to bring an Article 4 case where price changes in the market, supply-demand equilibrium or fields of activity of enterprises resemble those in markets where competition is obstructed, disrupted or restricted. That said, in most decisions, the board has recognised that companies may consciously follow the commercial strategies of their competitors and, in the absence of communication between competitors regarding a collusion or exchange of commercially sensitive information, parallel conduct alone will be insufficient to meet the standard of proof for a cartel.

For more information about this answer please contact: Gönenç Gürkaynak from ELIG Gürkaynak Attorneys-at-Law
4.9
In case of a finding of cartel activity, can the company seek to negotiate a settlement, plea bargain or similar resolution? If so, what is the process for doing so?
Turkey

Answer ... The Competition Board does not enter into plea bargain arrangements. A mutual agreement on other liability matters (which would have to take the form of an administrative contract) has also not been tested in Turkey. Once enacted, amendments to Law 4054 are expected to introduce a form of settlement procedure.

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