Comparative Guides

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4. Results: Answers
Cartels
5.
Leniency
5.1
Is a leniency programme in place in your jurisdiction? If so, how does this function?
Turkey

Answer ... A leniency programme has been in force in Turkey since 15 February 2009. The Regulation on Active Cooperation for Detecting Cartels sets out the main principles of immunity and leniency mechanisms. The Competition Authority Board also published the Guidelines on Explanation of the Regulation on Active Cooperation for Discovery of Cartels in April 2013 to provide guidance on the application of the leniency programme.

The leniency programme is applicable only for cartels as defined in question 1.5.

A cartel member may apply for leniency until the investigation report has been officially served on it. Depending on the timing of the application, the applicant may benefit from full immunity or a fine reduction.

The first cartel member to file an appropriately prepared application for leniency before the investigation report is officially served may benefit from full immunity. Employees and managers of the first applicant can also benefit from the full immunity granted to the applicant firm. However, the applicant must meet several conditions to receive full immunity from all charges. One of these is not to be the coercer of the reported cartel. If this is the case (ie, if the applicant forced the other cartel members to participate in the cartel), the applicant firm and its employees may receive only a fine reduction of between 33% and 100%. The other conditions are as follows:

  • The applicant must submit information and evidence in respect of the alleged cartel, including the products affected, the duration of the cartel, the names of the undertakings party to the cartel, and specific dates, locations and participants of cartel meetings;
  • The applicant must not conceal or destroy information or evidence relating to the alleged cartel;
  • The applicant must end its involvement in the alleged cartel, except where otherwise requested by the assigned unit on the grounds that investigating the cartel would become complicated;
  • The applicant must keep the application confidential until the end of the investigation, unless otherwise requested by the assigned unit; and
  • The applicant must maintain active cooperation until the board has taken its final decision after the investigation is completed.

If an applicant does not qualify for full immunity, a fine reduction may still be available for applications filed before the investigation report is served. Accordingly, the second leniency applicant will be eligible for a reduction of 33% to 50%, the third leniency applicant will be eligible for a reduction of 25% to 33% and all other applicants will be eligible for a reduction of 16% to 25%. The same conditions for full immunity above also apply to fine reduction.

For more information about this answer please contact: Gönenç Gürkaynak from ELIG Gürkaynak Attorneys-at-Law
5.2
What are the benefits of applying for leniency, both for the first mover and for subsequent applicants?
Turkey

Answer ... See question 5.1.

Additionally, Amnesty Plus is available under Article 7 of the Regulation on Fines to Apply in Cases of Agreements, Concerted Practices and Decisions Limiting Competition and Abuse of Dominant Position. The fine to be imposed on an undertaking which cannot benefit from full immunity for this conduct can be reduced by one-quarter if it provides the information and documents specified in Article 6 of the Regulation on Active Cooperation for Detecting Cartels prior to the Competition Board’s preliminary investigation decision in relation to another cartel.

For more information about this answer please contact: Gönenç Gürkaynak from ELIG Gürkaynak Attorneys-at-Law
5.3
What steps does a leniency application involve? What timeframe do these typically follow?
Turkey

Answer ... As stated in question 5.1, a cartel member may apply for leniency until the investigation report has been officially served. Although the Regulation on Active Cooperation for Detecting Cartels does not provide detailed principles on the ‘marker system’, the authority can grant a grace period to applicants to submit the necessary information and evidence. For the applicant to be eligible for a grace period, it must provide minimum information concerning the affected products, the duration of the cartel and the names of the parties. A document (showing the date and time of the application and a request for time to prepare the requested information and evidence) will be given to the applicant by the assigned unit.

For more information about this answer please contact: Gönenç Gürkaynak from ELIG Gürkaynak Attorneys-at-Law
5.4
What are the rights and obligations of the applicant during the leniency application and over the course of its cooperation with the enforcement authorities?
Turkey

Answer ... According to the principles set forth under the Regulation on Active Cooperation for Detecting Cartels, the applicant (ie, the undertaking or employees or managers of the undertaking) must keep the application confidential until the end of the investigation, unless otherwise requested by the Competition Authority. The same level of confidentiality also applies to subsequent cooperating parties.

Nevertheless, to the extent that the confidentiality of the investigation will not be harmed, the applicant undertakings can provide information to other competition authorities and institutions, organisations and auditors. The applicant is in any case obliged to maintain active cooperation until a final decision is taken by the Competition Board following the conclusion of the investigation. As per paragraph 44 of the Guidelines on Explanation of the Regulation on Active Cooperation for Discovery of Cartels, if the employees or personnel of the applicant undertaking disclose the leniency application to other undertakings and thus breach confidentiality, the board will evaluate the situation on a case-by-case basis based on whether the person at issue is a high-level manager and whether the board was notified promptly of the breach.

While the board can also evaluate information and documents ex officio, the general rule is that information and documents that are not requested to be treated as confidential will be treated as non-confidential. Undertakings must request confidentiality from the board in writing and justify their reasons for the confidential nature of the information or documents that are requested to be treated as commercial secrets. Non-confidential information may become public through a reasoned decision, which is typically announced within three to four months of the board deciding on the case.

Since active cooperation is required of all applicant cartel members in order to benefit from the leniency or immunity granted by the board, extra effort should be spent on keeping the board informed to the fullest extent possible regarding the cartel that is subject to investigation.

As regards settlement, plea bargaining and similar resolution procedures, see question 4.9.

For more information about this answer please contact: Gönenç Gürkaynak from ELIG Gürkaynak Attorneys-at-Law
5.5
Is the leniency programme open to individuals? Can employees or former employees benefit from a leniency application filed by their employer? Do the authorities operate a programme for individual whistleblowers separate to the leniency programme?
Turkey

Answer ... Pursuant to Articles 1, 4 and 5 of the Regulation on Active Cooperation for Detecting Cartels, employees of a cartelist also benefit from the same level of leniency or immunity that is granted to the entity if the relevant conditions set out in questions 5.1 and 5.2 are met.

An executive or employee of a cartelist may also apply for leniency before the investigation report is officially served. Such an application is independent from any application by the cartel member itself. Depending on the application order, there may be total immunity from fine, or a reduction in fine, for such executive or employee. The reduction rates and conditions for immunity or reduction are the same as those for companies.

For more information about this answer please contact: Gönenç Gürkaynak from ELIG Gürkaynak Attorneys-at-Law
5.6
Can leniency be denied or revoked? If so, on what grounds?
Turkey
On the conditions which an applicant must meet to receive full immunity from all charges or a fine reduction, see question 5.1. If these conditions are not met, the board can reject or revoke leniency.

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