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 Competition Board may also initiate a fully fledged investigation directly without a preliminary investigation.

Answer ... See question 3.2.

Pursuant to Article 15 of Law 4054, the Turkish Competition Authority (TCA) 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 TCA is not among the agencies authorised to search premises.

Answer ... See question 3.2.

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 TCA who conduct the dawn raid are not obliged to wait for the undertaking’s counsel to assist with the dawn raid. Indeed, in Çekok Gıda (Decision 18-04/56-31 of 8 February 2018), in which it imposed a fine on an undertaking for obstructing a dawn raid, the Competition Board dismissed an argument that the delay was caused by the wait for external counsel to arrive.

Answer ... See question 3.2.

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 all information and documents held in the electronic media and information systems 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.

Answer ... If the dawn raid is conducted during a preliminary investigation, this investigation must be completed within 30 calendar days of the date on which the Competition Board opened 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 fully fledged 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 Competition 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 calendar days (second written defence). The case team then has 15 calendar days (extendable for a further 15 calendar 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 calendar days. Once the parties’ responses to the additional opinion have been submitted to the TCA, 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 between 30 and 60 days following completion of the investigation process under Communiqué 2010/2 on Oral Hearings before the Competition 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.

Answer ... In order to prove an undertaking’s participation in cartel activity, the Competition 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 a relatively low standard of proof concerning cartel activity, with a broad interpretation of Law 4054 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 Competition 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.

Answer ... As a result of amendments to Law 4054 which were introduced in 2020, the main points of the new settlement mechanism are set out in Article 43 of the law. Based on this, the Competition Board may initiate a settlement process in view of the procedural efficiencies and any differences of opinion regarding the existence or scope of the violation.

As per Article 43, the settlement process can be commenced only after the initiation of the investigation, and must be concluded before the official service of the investigation report (the statement of objections, which identifies the competition law concerns). Once the parties have officially confirmed their intention to pursue settlement through the submission of a written application to the TCA, the Competition Board will set a definitive timeframe for the undertakings to submit a settlement letter. As this timeframe is definitive, the board will not consider submissions made once it has elapsed. Following the submissions of the undertakings, if the board decides to settle, the investigation will be closed with a final decision including the finding of a violation and the imposition of an administrative monetary fine, which may be reduced by up to 25% as a result of the settlement procedure. As per Article 17(6) of Law 5326 on Misdemeanours, the utilisation of the settlement mechanism does not prevent the application of the fine reduction. However, the Competition Board’s decision on the administrative fine and the matters within the scope of the final settlement text is of a final nature and thus cannot be appealed before a higher court. The Settlement Regulation which entered into force on 15 July 2021 determines the other procedures and fundamentals of the settlement process. As regards the applicability of the settlement mechanism, Law 4054 imposes no restrictions in terms of the nature of the violation. The Settlement Regulation sheds light on the dual application of the Regulation on Active Cooperation and the Settlement Regulation. As per Article 10 of the Settlement Regulation, an undertaking may make a separate application in order to also benefit from leniency. To benefit from this, the undertaking concerned must apply for leniency before the settlement letter is submitted to the TCA.

According to the Settlement Regulation, if the TCA ex officio invites the investigation parties to settlement negotiations, the parties should declare whether they accept this invitation within 15 days. Article 4(4) of the regulation provides that the Competition Board has the discretion to grant a settlement reduction of between 10% and 25%, indicating that the actual reduction of fine due to settlement will not be less than 10%. Article 6(5) of the Settlement Regulation stipulates that the TCA will inform the settling party of:

• the content of the allegations;
• the nature and scope of the alleged violation;
• the main evidence on which the allegations are based;
• the potential reduction rate to be applied in case of settlement; and
• the range of potential administrative fines which might be imposed on the settling party.

Following the settlement negotiations, the Competition Board will adopt an interim decision, which includes the following, among other things:

• the nature and scope of the alleged violation;
• the maximum rate of the administrative fines in accordance with the Regulation on Fines; and
• the reduction rate to be applied at the end of the settlement procedure.

If the settling party agrees on the matters set forth therein, it will submit a settlement letter which includes an express declaration of admission as to the existence and scope of the violation. Article 9(1) of the Settlement Regulation provides that the Competition Board will adopt its final decision to end the investigation within 15 days of submission of the settlement letter. The board’s final decision will include the finding of a violation and the administrative fine to be imposed on the settling undertaking.