Comparative Guides

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4. Results: Answers
Can the defendant company appeal the enforcement authorities’ decision? If so, which decisions of the authority can be appealed (eg, all decisions or just the final decision) and to which reviewing authority? What is the standard of review applied by the reviewing authority (eg, limited to errors of law or a full review of all facts and evidence)?

Answer ... As per Law 6352, which entered into force as of 5 July 2012, final decisions of the Competition Board, including decisions on interim measures and fines, can be submitted to the administrative courts for judicial review within 60 days of the receipt of the board’s reasoned decision. Decisions of the board are considered administrative acts and thus legal actions against them shall be pursued in accordance with Law 2577 on Administrative Procedure. The judicial review comprises both procedural and substantive review.

As per Article 27 of Law 2577, filing an administrative action does not automatically stay execution of the decision of the board. However, upon the request of the plaintiff, the court, by providing its justifications, may decide to stay execution of the decision if this is likely to cause serious and irreparable damage and the decision is highly likely to be against the law (ie, showing of a prima facie case).

Judicial review before the Ankara administrative courts usually takes about eight to 24 months. Decisions of the Ankara administrative courts are subject to appeal before the regional courts (appellate courts) and the Council of State. If the challenged decision is annulled in full or in part, the administrative court will remand it to the board for review and reconsideration.

After the legislative changes, administrative litigation cases will become subject to judicial review before the newly established regional courts (‘appellate courts’). The new legislation has created a three-level appellate court system consisting of administrative courts, regional courts (appellate courts) and the Council of State. The regional courts will go through the case file on both procedural and substantive grounds, investigate the file and make their decision considering the merits of the case. The regional courts’ decisions will be considered final.

However, decisions of the regional courts will be subject to review by the Council of State in exceptional circumstances, which are set forth in Article 46 of Law 2577. In this case, the decision of the regional court will not be considered final. In such case the Council of State may decide to uphold or reverse the regional court’s decision. If the decision is reversed by the Council of State, it will be remanded to the regional court, which in turn will issue a new decision which takes into account the Council of State’s decision.

It takes approximately one to two years for the regional courts to finalise their review of a file. Appeal before the Council of State usually takes about 24 to 36 months. Decisions of courts in private suits can be appealed to the Supreme Court of Appeals. The appeal process in private suits is governed by the general procedural laws and usually lasts 24 to 30 months.

An appeal is typically initiated by the infringing party or parties in cases where the board finds a violation, or by complainants if there is no finding of a violation. The Competition Authority also has the right to challenge a court decision.

For more information about this answer please contact: Gönenç Gürkaynak from ELIG Gürkaynak Attorneys-at-Law
Can third parties appeal the enforcement authorities’ decision, and if so, in what circumstances?

Answer ... Pursuant to Article 2(1a) of Law 2577, anyone - including a third party - can appeal the Competition Authority’s decisions if it can prove an interest.

Third parties can also join appeal proceedings, subject to the relevant court’s approval, if they have sufficient interest in the case. Pursuant to Article 66 of Code 6100 on Civil Procedure, to which Law 2577 refers on the intervention of third parties in appeals of administrative decisions, if a third party has a legitimate interest in the outcome of proceedings pending before the court and its rights will be directly affected by the outcome of the proceedings, it may seek to join the ongoing proceedings as an intervening party until a final decision is rendered. If the third party’s legal interest will be affected by the ruling of the court, the intervention request should be deemed appropriate.

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