Final decisions of the Turkish Competition Board (“Board”) can be submitted to judicial review before the administrative courts of first instance of Ankara. To that end, parties to a procedure before the Competition Authority or any other party proving reasonable benefit can file an appeal case against a final and executable Board decision within 60 calendar days upon receipt of the Board’s reasoned decision.
The appeal procedure consists of the following stages:
- Filing a repeal suit within 60 days: The appeal case is initiated through filing a repeal suit before the administrative courts of first instance of Ankara within 60 calendar days upon receipt of the reasoned decision. For there to be an appealable act, the Board’s decision must be “final and executable”. That means the Board’s interim decisions or non-executable decisions are not subject to appeal. Interim decisions and non-executable decisions are those that do not give effect to a change in the legal status of the defendant or appellant. They simply enable the Authority to go through and advance the procedures to another phase. Examples of non-appealable interim decisions are decisions to launch a preliminary investigation or investigation, request for a written defense, decision to request an incumbent to put in place appropriate remedies, etc.
- Stay of execution: Filing a repeal suit neither automatically suspends the execution of the decisions of the Board nor inhibits the implementation of them. However, the appellant(s) may request the court to issue a preliminary injunction in order to suspend the implementation of the appealed decision. The court may decide to stay the execution as an interim measure only if: (i) the execution of the decision is likely to cause irreparable damages; and (ii) there is a prima facie case in favor of the appellant(s). The courts usually wait for the defendant’s (the Authority’s) defenses before reviewing a request for suspension and this takes a few months in any case. The court’s decision on the suspension request can be subject to the judicial review before the higher court.
- Review period: The judicial review period before the Ankara administrative courts usually takes about 12 to 24 months. However, it may take longer to become finalized due to (i) the characteristics and complexities of the case, and in particular, (ii) the workload of the court. If the challenged decision is annulled in full or in part, the administrative court returns it to the Board for review and reconsideration.
- Appeal before regional courts: Due to the recent legislative amendments, administrative and private litigation cases are subject to judicial review before the newly established regional courts. The new legislative amendment creates a three-level appellate court system which consist of; (i) administrative courts, (ii) regional courts and (iii) Council of State (the Court Appeals of private cases). The regional courts will (i) go through the case file both on procedural and substantive grounds, and (ii) investigate the case file and make their decision considering the merits of the case. The regional courts’ decisions will be considered as final in nature.
- Appeal before the Council of State: The decisions of the regional court will be subject to the Council of State’s review in exceptional circumstances, which are set forth in Article 46 of the Administrative Procedure Law. In such cases, the decision of the regional court will not be considered as a final decision and 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 returned to the deciding regional court, which will in turn issue a new decision which takes into account the Council of State’s decision.