The Guidelines on Administrative Fines to Apply in Cases of Agreements, Concerted Practices, and Decisions Limiting Competition, and Abuse of Dominant Position1 (the "Guidelines") published by the Turkish Competition Authority (the "TCA") on February 19, 2025, marks a significant step in clarifying the practical application of Turkey's reformed fining regime. Indeed, issued shortly after the new Regulation on Fines to Apply in Cases of Agreements, Concerted Practices, and Decisions Limiting Competition, and Abuse of Dominant Position ("Regulation") entered into force on December 27, 2024 – by replacing the 2009 version- the Guidelines provide a detailed roadmap for how administrative monetary fines will be assessed under Articles 4 and 6 of Law No. 4054.
The Guidelines, along with the newly adopted Regulation, reshape the framework of Turkish competition enforcement by abolishing the long-standing distinction between cartels and other forms of infringements - a distinction that had previously dictated separate base fine rates depending on the type of violation. This reconfiguration signifies a clear move away from rigid sanctioning formulas toward a more adaptive, effects-oriented approach, enabling the Turkish Competition Board (the "TCB") to tailor penalties in light of case-specific circumstances.
Building on this foundation, the Guidelines provide structured guidance on how the TCB's discretionary powers will be exercised in the fine-setting proces; introducing detailed criteria for evaluating the nature and severity of infringements, outlining how aggravating and mitigating factors should be assessed, and clarifying when and how individual managers or employees may be held personally liable. In doing so, the Guidelines not only aim to reinforce legal certainty and procedural transparency, but also to enhance the deterrent effect of administrative sanctions.
Accordingly, this article will examine the transformation brought by the new Regulation and its implementing Guidelines in the determination of administrative monetary fines, with a particular focus on their role in shaping future enforcement practice under Turkish competition law. In doing so, it explores how the Guidelines operationalize this new framework through a structured methodology—covering the calculation of separate base fines, the impact of infringement characteristics such as duration and severity, the application of aggravating and mitigating factors, the integration of leniency and settlement mechanisms, and the conditions under which individual liability may be imposed.
I. Introduction
1. Legal Framework Under the Law No. 4054 on the Protection of Competition
The authority to impose administrative fines in Turkish competition law derives from Article 16 of Law No. 4054 on the Protection of Competition ("Law No. 4054") which sets the overarching legal parameters governing sanctions.
Undertakings that are found to have violated (prohibiting anti-competitive agreements, concerted practices, or decisions) or Article 6 (prohibiting abuse of dominance) of the Law 4054 may be fined up to 10% of their annual gross revenue for the financial year preceding the date of the final decision. This statutory ceiling serves as the outer limit for each infringement and reflects the legislator's intent to provide a proportionate and deterrent framework for corporate-level fines.
In addition to undertakings, Article 16(4) provides for individual liability, allowing the Competition Board to impose fines on managers or employees who are found to have "decisive influence" in the infringement. Such individuals may be fined up to 5% of the fine imposed on the undertaking provided that their involvement was indispensable in the formation or continuation of the unlawful conduct. A notable innovation in the new framework is that, with the elimination of the distinction between cartels and other violations, individual liability may now arise in connection with any type of infringement; the Guidelines clarify that such liability applies only to those who exercise "decisive influence"- namely, individuals whose role in the formation or continuation of the conduct was indispensable, such as executives who designed collusive strategies or orchestrated abusive practices.
In determining the precise amount of the administrative fine, the TCB is required to consider a set of statutory factors within the limits defined by law. These factors include recidivism, the duration of the infringement, the market power of the undertaking concerned, the extent of its role or influence in the anti-competitive conduct, whether it complied with any commitments given to the authority, whether it cooperated during the investigation, and the severity of the actual or potential harm caused by the infringement6. These considerations aim to ensure that fines are proportionate, context-sensitive, and responsive to the specific circumstances of each case. The 2025 Guidelines build upon these criteria by providing a structured method to apply them in practice.
Adopted pursuant to Article 16 under the TCB's secondary rule-making powers, the Guidelines explicitly seek to increase the effectiveness of the fining policy and strengthen deterrence, while also establishing legal certainty and transparency in fine calculations1. In doing so, the Guidelines require a more context-sensitive analysis in setting fines, in line with the factors listed in Law 4054 and the evolving landscape of competition law enforcement in Turkey.
2. Policy Rationale Behind the Recent Fining Reform
The recent fining reform - comprising both the new Regulation and the 2025 Guidelines - aims to enhance the effectiveness of the administrative sanctioning system, reinforce deterrence, and improve legal certainty in competition law enforcement. The reform reflects a shift toward a more flexible and effect-based model of fine calculation, departing from rigid categorization and predetermined thresholds.
This evolution was driven by the growing disconnect between traditional enforcement tools and the realities of modern markets. In particular, the rise of complex digital ecosystems, data-driven business models, and algorithmic coordination has challenged the capacity of conventional frameworks to detect, deter, and punish anti-competitive conduct effectively. The Guidelines, as the interpretive and operational complement to the Regulation, embody this policy shift by offering a structured methodology that aligns enforcement with the complexities of present-day competition issues.
II. Substantive and Procedural Framework Under the New Fining Reform
Under the previous fining regime introducted by the 2009 Regulation2, there was a distinction between "cartels" and "other infringements" where different base fine ranges applied to each category. This categorical approach has been abandoned under the new regime, which instead introduces the concept of "naked and/or hardcore infringements" as set forth in Article 5(2) of the Regulation. In line with this change, the predefined lower and upper limits associated with the previous classification have been removed, allowing for a more flexible and effects-based assessment of fines.
The revised framework also recalibrates how the duration of the infringement affects the fine, introducing a graduated increase system: a 1/5 increase applies for violations lasting one to two years, increasing progressively up to a twofold increase for violations exceeding five years. This structure reflects an intention to ensure that the temporal scope of the conduct is proportionately accounted for in fine setting. In addition, aggravating and mitigating factors have also been restructured in line with the precedents of the TCB. Additionally, the previously applicable lower and upper boundaries for adjustments based on these factors have been eliminated. The criterion of "very low share" of infringement-related activities in annual gross revenue has been revised to "low share," thereby expanding the scope of mitigating factors.
A particularly significant principle - explicitly underscored in both the new Regulation and the Guidelines - is that the base fine rate must be calculated separately for each infringement. Accordingly, the TCB may impose distinct fines of up to 10% of the undertaking's turnover per violation; while conducting a through analyses in determining whether . separate violations exist. While this assessment is not entirely new, the Guidelines broaden its scope and provide greater clarity regarding its application in practice.
1. Principles Governing the Determination of Administrative Fines
As outlined in the preceding section, the Guidelines reaffirm the principle that the base fine rate must be calculated separately for each violation, while also providing further clarification on how this assessment should be conducted in practice. In this context, the TCB is expected to conduct a case-by-case analysis to determine whether a single infringement or multiple distinct violations exist. Relevant factors include the geographic markets where the conduct occurred, the product markets affected, any related input and output markets, the temporal and strategic cohesion of the conduct, and whether the behaviours were carried out pursuant to a unified commercial decision. Where multiple violations are identified, the base fine rate will be assessed individually for each infringement, and aggravating and mitigating factors will likewise be considered on a separate basis. While this principle was already present under the 2009 Regulation, the new framework places greater emphasis on its practical enforcement. The Guidelines' detailed articulation of this methodology signals a clearer and potentially more assertive application by the TCB - particularly in complex cases involving parallel or consecutive conduct that affects multiple markets or legal provisions.
2. Determination of the Base Fine Rate
The Guidelines offer a detailed roadmap for calculating the base fine rate - representing the initial stage of the sanctioning methodology under the fining framework. Departing from the rigid categories and fixed brackets of the 2009 Regulation, the current approach introduces a more flexible, two-step structure tied to both the qualitative nature and the duration of the infringement.
Specifically, the elimination of the distinction between "cartels" and "other infringements" has resulted in the base fine rate no longer being confined to predefined ranges. Instead, the TCB will first determine an initial fine rate, without limitation, based on the severity of the actual or potential harm and the nature of the violation—particularly whether it qualifies as a naked and/or hardcore infringement. This initial rate is then adjusted upward according to the duration of the conduct, yielding the base fine rate, which forms the reference point for further adjustments based on aggravating or mitigating factors.
a) Determination of the Initial Fine Rate
In setting the initial fine rate, the TCB takes into account, without limitation, two key elements: the severity of the harm caused or likely to be caused by the infringement, and the nature of the conduct—particularly whether it qualifies as a naked and/or hardcore restriction.
According to the Guidelines, the severity of harm may vary depending on factors such as the degree of implementation, the intensity of the conduct, the market position of the undertaking, the products affected, and the geographic scope of the infringement. Conduct that spans wide geographic areas, targets essential products or large-scale markets, or is committed by undertakings capable of creating barriers to entry is likely to result in a higher initial fine rate. The Guidelines also make clear that harm is not assessed solely in terms of its impact on competition in the relevant market. Broader economic effects - such as interference with national economic development, macroeconomic policy objectives, or disruption during force majeure conditions like natural disasters or public emergencies - may also be taken into consideration.
The nature of the violation is assessed independently, yet carries equal weight. Naked restrictions - including price-fixing, customer or market allocation, supply limitations, and collusive tendering - are considered inherently harmful and are not eligible for efficiency defences. Hardcore infringements, in turn, typically involve undertakings with significant market power and generate a substantial negative impact on consumer welfare. To determine whether an infringement qualifies as hardcore, the TCB may evaluate factors such as market share, brand strength, control over essential inputs, vertical integration, potential for disruptive innovation, and the presence of entry barriers. Violations affecting sectors tied to public services, healthcare, environmental protection, or innovation-intensive markets may also justify a higher initial rate, given the broader systemic risks involved.
b) Adjustment Based on Duration of the Violation
Once the initial fine rate is established, it is adjusted based on the duration of the violation. If the violation persists for at least one year, the Guidelines prescribe a graduated increase to reflect the extended impact on the market. For infringements exceeding five years, the initial rate is doubled. The applicable increments are as follows:
- 1-2 years → + 1/5
- 2-3 years → + 2/5
- 3-4 years → + 3/5
- 4-5 years → +4/5
- 5 years or longer → ×2
The Guidelines clarify that a full year is calculated from the exact day on which the violation began, and is considered complete on the same day of the following callendar year. Although the duration of an infringement was already a factor under the previous regime - where violations between one and five years were subject to a 50% increase, and those exceeding five years to a one-fold increase - the new framework introduces a more refined and proportionate mechanism. Following a graduated structure where fines increase progressively, the duration adjustment now applies in distinct annual intervals, which allows the TCB to better capture the temporal scope of the infringement and contributes to a more tailored and economically consistent fine-setting process.
3. Determination of the Final Fine Rate
The TCB, after determining the base fine rate, evaluates aggravating and mitigating factors to finalize the amount of the administrative fine imposed on the undertaking concerned. Under the new fining framework, the Board operates with expanded discretionary powers - particularly in relation to discretionary aggravating elements. For mitigating factors, the absence of lower or upper thresholds grants the TCB full flexibility in deciding whether, and to what extent, a reduction should apply. This marks a shift toward a more individualized and context-sensitive sanctioning approach.
a) Aggravating Factors
Under the Guidelines, aggravating factors fall into two principal categories: recidivism and a set of discretionary factors that may warrant an upward adjustment to the base fine. The revised framework refines both the scope and structure of these criteria, allowing the TCB to impose stronger and more targeted sanctions in light of case-specific aggravating elements.
- Recividivism: A key refinement in the new framework concerns the treatment of recidivism. Indeed, the Guidelines now clarifies that any prior infringement of Article 4 or Article 6 - regardless of the nature of the initial and subsequent violation. Moreover, the Guidelines confirm that a previous TCB decision may trigger recidivism so long as it has not been annulled or stayed by an administrative court—removing the need for finality in judicial review. It is also explicitly established that once a TCB decision has been used as a basis of a recidivism-based increase, it cannot be relied upon again for the same purpose in future decisions. These clarification strengthens the deterrent function of the rule and eliminates interpretive uncertainties that existed under the 2009 regime. Lastly, the earlier model's "half to onefold" range for recidivism-based increases has been removed, allowing the TCB to impose a cumulative increase of up to one-fold—even where multiple prior infringements are identified.
- Discretionary Aggravating Factors: The new fining regime identifies several discretionary aggravating factors that the TCB may consider based on the specific facts of a case:
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- Decisive influence, which refers to an indispensable role in initiating or maintaining the infringement. The Guidelines clarify that activities such as designing the strategic elements of the anti-competitive conduct, organizing or leading meetings, pressuring other undertakings to participate, or enforcing compliance through internal mechanisms may constitute decisive influence.
- Continuation of the infringement after the receiving the investigation decision, The new framework replaces the previous reference to "continuation of cartel" with a broader notion of "continuation of infringement," thereby extending this factor to non-cartel violations.
- Breaches of confidentiality obligations under the Settlement Regulation is also outlined as a further discretionary aggravating factor.
Aggravating factors, such as repetition and discretionary elements like decisive influence, allow TCB to increase fines based on the severity and persistence of the infringement. This ensures a more effective deterrent and fairer fine assessment. Where multiple discretionary aggravating factors are applicable, the TCB will determine a single increase rate reflecting the overall severity, rather than applying separate increases for each. However, if discretionary factors are combined with recidivism, their respective increase rates may be aggregated.
b) Mitigating Factors
The new framework does not prescribe any fixed lower or upper limits for fine reductions based on mitigating factors, granting the TCB considerable discretion in both recognizing and quantifying such elements. The Guidelines provide illustrative examples of circumstances that may warrant a reduction, including:
- Cooperation during on-site inspections: The Guidelines clarify that merely fulfilling legal obligations will not benefit from mitigation. However, undertakings that actively support the inspection process - such as by providing technical or logistical assistance, or voluntarily submitting additional information relevant to the investigation—may benefit from a reduction.
- Coercion by other undertakings: Where the anti-competitive conduct was carried out under duress—such as through force, threats, intimidation, or pressure from other undertakings—the infringing party may invoke this as a mitigating circumstance, provided that the coercion played a determinative role in its participation.
- Limited participation in the infringement: Companies that played a minor role, such as early withdrawal from the conduct, passive attendance at anti-competitive meetings, or refraining from implementing the agreement in practice.
- Low share of the infringing activity in gross revenues: Unlike the previous regulation, which required the share to be "very low," the new framework expands this mitigating factor by allowing reductions based on a "low" share of revenues. Guidelines set forth that, in assessing this, the TCB generally considers the proportion of revenue generated from the specific products or services associated with the violation.
- Presence of foreign sales revenues: TCB may consider export revenues as a mitigating factor. However, this does not automatically lead to a reduction, as TCB will assess whether export activities have reinforced market power or sustained anti-competitive practices.
The Guidelines underline that the list of mitigating factors is non-exhaustive, and the TCB retains full discretion to assess both the relevance and the weight of any circumstance presented. This discretion enables the TCB to tailor sanctions to the specific context of each case, ensuring that the penalty reflects the actual conduct and its market impact. Such flexibility aims to enhance fairness, promote voluntary compliance, and preserve proportionality in enforcement.
4. Administrative Monetary Fines on Managers and Employees
The revised framework marks a shift toward broader individual accountability, as the removal of the cartel/other violations distinction now allows for personal liability across all types of infringements. Under this approach, managers and employees who played a decisive role in the initiation or continuation of an infringement will be held directly liable.
As stipulated under Article 16(4) of Law No. 4054, such individuals can be fined up to 5% of the fine imposed on the undertaking, without any prescribed minimum. The Guidelines elaborate that decisive influence may be found where a person was instrumental in shaping the anti-competitive strategy, leading or organizing its execution, pressuring other parties to engage in the conduct, or supplying the means necessary to sustain it. The key criterion is whether the individual's involvement was indispensable to the execution or continuation of the infringement.
III. Conclusion
The Guidelines, along with the reformed Regulation, mark a significant shift in Turkish competition law enforcement. By eliminating the long-standing distinction between cartel and non-cartel violations, introducing a duration-based fine adjustment mechanism, and restructuring aggravating and mitigating factors, the new framework replaces rigid categorical rules with a more flexible, effect-based methodology. This recalibration not only enhances the proportionality and deterrence of sanctions but also equips the TCA with a more nuanced toolset to address evolving market realities- including digitalization, data-driven conduct, and cross-border business models. At the same time, the broad discretionary powers now vested in the TCB heighten the need for legal certainty, consistency, and transparent reasoning in future decisions. This is also relevant in light of the expanded scope of individual liability introduced by the new framework, which reinforces the shift toward personal accountability in enforcement and underlines that compliance is not solely a corporate responsibility.
Looking ahead, the interpretation and application of the new fining regime by the TCB will be critical in shaping a coherent and predictable sanctioning practice. If effectively internalized by undertakings and judicially reviewed with rigor, this new framework has the potential to foster a stronger culture of compliance while safeguarding the integrity of competition in the Turkish market.
Footnotes
1. https://www.rekabet.gov.tr/Dosya/ceza-yonetmeligi-kilavuzu-20250219105421829.pdf
2. Published in the Official Gazette dated 15 February 2009 and numbered 27/42.
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