Communiqué regarding Commitments to be submitted in preliminary investigations and investigations for agreements, concerted practice and decisions as well as abuse of dominant positions has been entered into force as published on Official Gazette dated 16.03.2021 and numbered 31425. Competition Authority has published a draft of the communiqué for public opinion on 27.11.2020 which introduced commitment mechanism to our competition practice. Our article regarding draft communiqué is accessible through the link: http://guzel.av.tr/commitment-application-begins-in-turkish-competiton-law/
- Under Article 6 subparagraph 1 of the draft communiqué published on 27.11.2020, it has foreseen that Competition Authority will initiate the commitment negotiations as soon as possible upon receipt of the commitment demand of the parties. On the other hand, in accordance with the communiqué that is entered into force, Competition Authority may not initiate the commitment negotiations at all taking into account the severability and clarity of antitrust violation. Therefore, communiqué entered into force granted an authority to the Competition Authority which is not foreseen on the draft communiqué.
- Another difference which communiqué in force introduced is to clarify the definition of clear and severe violations by broadening the definition. In the draft communiqué, clear and severe violations have been defined as price-fixing, customer or territory sharing, and supply restricting between competitors. On the other hand, communiqué in force defines the clear and severe violations as, "Agreements and/or concerted practice or decisions and practices of associations of undertakings that have as their purpose, caused or be capable of prevention, restriction or distortion of competition directly or indirectly in any product or service market
1) Fixing price, sharing of the customer, provider, territory or trade channels, restriction of supply or imposition of quotas, concerted practice on tenders, sharing of information to be applied regarding price, production or sale amounts between competitors,
2) Determination of fixed or minimum sales prices by the buyer in the relationship between undertakings operating at a different level of production or distribution chain,
Thus certainty has been achieved, price-fixing on vertical relations has been included explicitly as well as horizontal relations.
- Another issue is related to ongoing investigations. Both draft communiqué and communiqué in force have foreseen that requirement that commitment demand be submitted to the Authority within 3 months upon the decision of opening of an investigation is not necessary for the investigations 3 months' time period has elapsed as of the effective date of communiqué. Pursuant to temporary article 1 of draft communiqué the persons about whom the investigations are conducted may demand commitment submission until the end of the last written defense periods. However, this clause has been excluded in the communiqué in force. As we put forward in our article regarding draft communiqué, we are of the opinion that demand for commitment submission may be submitted until the final decision of violation is announced is more appropriate for the purpose of commitment mechanism. Unfortunately, this provision foreseen for the transition process in the draft communiqué has been excluded completely in the communiqué which is entered into force.
- Schema regarding commitment mechanism is accessible through https://www.rekabet.gov.tr/Dosya/genel/taahhut-sureci-semasi-pdf
Originally published 17 Mar, 2021.
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