Turkey
Answer ... Article 6 of Law 4054 sets out a non-exhaustive list of specific forms of abuse, which is similar to Article 102 of the Treaty on the Functioning of the European Union. This non-exhaustive list is as follows:
- directly or indirectly preventing entry into the market or hindering competitor activity in the market;
- directly or indirectly engaging in discriminatory behaviour by applying dissimilar conditions to equivalent transactions with similar trading parties;
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making the conclusion of contracts subject to acceptance by the other parties of restrictions concerning resale conditions, such as:
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- the purchase of other goods and services;
- the acceptance by intermediary purchasers of the display of other goods and services; or
- the maintenance of a minimum resale price;
- distorting competition in other markets by taking advantage of financial, technological and commercial superiorities in the dominated market; and
- limiting production, markets or technical development to the prejudice of consumers.
Turkey
Answer ... The main types of abuse of dominance in Turkey are exclusionary and exploitative abuses. That said, the Turkish Competition Board rarely analyses instances of abuse of dominance involving the imposition of unfair and exploitative contract terms; the debate on whether to intervene usually focuses on excessive pricing. Exclusionary practices can be further divided into:
- exclusionary pricing;
- exclusive dealing;
- leveraging;
- refusal to deal; and
- discrimination.
Regarding exploitative abuses, excessive prices and/or exploitative terms of supply may be deemed in violation of Article 6 of Law 4054.
Turkey
Answer ... The Turkish Competition Board can commence an investigation ex officio or in response to a complaint that it receives. Assessments of abuse of dominance must be conducted within the rationale set out in Law 4054. In that sense, Article 2 of Law 4054 offers an effect-based approach to identify anti-competitive conduct, with the result that the determining factor in assessing whether a practice amounts to abuse is the effect produced on the market, regardless of the type of conduct at issue.
Turkey
Answer ... The Turkish Competition Authority has a wide range of investigative powers under Law 4054. As provided in Article 14 of Law 4054, the Turkish Competition Board can request relevant information for its ongoing investigations from third parties, public institutions and organisations, trade associations and the relevant undertakings. Failure to comply with a request to produce information or failure to produce such information in a timely manner may lead to the imposition of a fine of 0.1% of the turnover generated in the financial year preceding the date of the fining decision (if this is not calculable, the turnover generated in the financial year nearest to the date of the fining decision will be taken into account). If incorrect or misleading information is provided in response to a request for information, the same penalty may be imposed. The administrative monetary fine may not be lower than TL 105,688 (valid until 31 December 2023).
In addition to its power to request information, the Turkish Competition Authority has the power to:
- conduct on-site inspections and examine the records, paperwork and all sorts of documents of undertakings and trade associations and, if need be, take copies of the same;
- request undertakings and trade associations to provide written or oral explanations on specific topics; and
- conduct on-site inspections with regard to any asset of an undertaking.
Additionally, as stipulated under the Amendment Law and the Guidelines on Examination of Digital Data During On-site Inspections (adopted through Decision 20-45/617 of 8 October 2022), the Turkish Competition Authority can inspect and make copies of all information and documents held in the electronic media and information systems of the relevant undertakings. The guidelines also allow the authority to examine mobile devices (eg, mobile phones and tablets), unless it is determined that such devices are used solely for the personal use of a given employee. Regardless, the authority has the power to conduct a quick review of any portable electronic device to ascertain its intended purpose. The authority may also investigate computer records, telephone records, emails and other correspondence (eg, WhatsApp), including deleted items.
Preventing and/or hindering on-site inspections will result in the imposition of administrative fines.
The Turkish Competition Board has imposed an administrative monetary fine for obstructing on-site inspections in various decisions even where the relevant correspondence/messages were restored or where no evidence of a violation was found (eg, see the board’s decisions in Eti (Decision 20-24/278-123 of 29 April 2021); Medicana (Decision 21-31/400-202 of 17 June 2021); Çiçek Sepeti (Decision 21-27/354-173 of 27 May 2021); Procter & Gamble (Decision 21-34/452-227 of 8 July 2021); Hepsiburada (Decision 21-48/678-338 of 7 October 2021); Unmas (Decision 21-26/327-152 of 25 January 2022); Hepsiburada (Decision 22-03/35-16 of 13 January 2022); and Softtech (Decision 22-42/614-258 of 15 September 2022).
Turkey
Answer ... By way of complaints, third parties may trigger investigations of the Turkish Competition Board and become a party to the proceedings. In addition, the board may request the views of third parties within the course of an ongoing investigation or require specific documents.
Turkey
Answer ... The Turkish Competition Board is authorised to take all necessary measures to:
- terminate restrictive agreements;
- remove all de facto and legal consequences of any action that has been taken unlawfully; and
- restore the level of competition and status to that which existed before the infringement.
A restrictive agreement will be deemed legally invalid and unenforceable, with all the legal consequences. The board is authorised to take interim measures until the final resolution of the matter if there is a possibility of serious and irreparable damages. The board can order structural remedies for anti-competitive conduct, provided that behavioural remedies were initially applied and have failed.
Turkey
Answer ... Investigated undertakings are entitled to protect confidential/commercially sensitive information. The main statutes on the protection of commercially sensitive information are Article 25(4) of Law 4054 and Communiqué 2010/3 on the Regulation of the Right to Access to File and Protection of Commercial Secrets. Communiqué 2010/3 places the burden of identifying commercial secrets and justifying such classification on the investigated undertakings. Therefore, undertakings must request confidentiality from the Turkish Competition Authority and justify the reasons for the confidentiality of the information or document in writing. Under Article 15(2) of Communiqué 2010/3, the authority may not consider confidentiality requests if they relate to information and documents that are indispensable as evidence of competition infringement. In such cases, the authority can disclose information and documents that could be considered as trade secrets by taking into account the balance between the public interest and private interest, and in accordance with the principle of proportionality.
Additionally, investigated undertakings have the right to access the case file on two legal grounds: Law 4982 on the Right to Information and Communiqué 2010/3. Article 5(1) of Communiqué 2010/3 provides that the right to access the case file will be granted upon written request of the parties within due time during the investigation. This gives the applicant access to information and documents in the case file that do not qualify as internal documents of the authority or trade secrets of other undertakings.
The Turkish Competition Board’s decisions are subject to appeal before the administrative courts. Investigated undertakings can also voluntarily offer commitments during a preliminary investigation or a fully-fledged investigation to address the Turkish Competition Authority’s competitive concerns. However, this mechanism is not applicable to hardcore violations. There is no time limitation for the utilisation of the commitment mechanism and no need to admit to a violation. Nevertheless, the board may relaunch an investigation if:
- there is a substantial alteration in any of the factors on which the decision was based;
- the relevant undertakings or associations of undertakings act in violation of the commitments given; or
- the decision was based on missing, false or misleading information presented by the investigated undertakings.
Furthermore, the board, ex officio or on the request of the investigated undertaking, can initiate a settlement procedure. Investigated undertakings that admit to the infringement can apply for the settlement procedure until official notification of the investigation report. If a settlement is reached, a reduction of up to 25% of the administrative monetary fine may be applied. The investigated undertaking may not bring a dispute on the settled matters and the administrative monetary fine once an investigation is finalised with a settlement.
Turkey
Answer ... The Turkish Competition Board will first assess whether the investigated undertaking holds a dominant position in Turkey in terms of the relevant product markets that are subject to the investigation. Consequently, the board will analyse whether the relevant actions/arrangements of the dominant undertakings amount to the abuse of dominance. To this end, as explained in question 3.3, Article 2 of Law 4054 adopts an effect-based approach to identify anti-competitive conduct, with the result that the determining factor in assessing whether a practice amounts to abuse is the effect on the market, regardless of the type of conduct. All in all, the analysis by the board will depend on the type/nature of the alleged violation.
Turkey
Answer ... As per Article 43 of Law 4054, the settlement process can be commenced only after the initiation of the investigation and must be concluded before the official serving of the investigation report. Once the parties have officially confirmed their intentions for settlement by submitting a written application to the Turkish Competition Authority, the Turkish Competition Board will set a definitive timeframe for the undertakings to submit a settlement letter. Since the timeframe is definitive, the board will not consider submissions that are made after the period has concluded. Following the submissions of the undertakings, if the board decides to settle, the investigation will be closed with a final decision including the finding of a violation and administrative monetary fine, which may be reduced by up to 25% as a result of the settlement procedure. As per Article 17(6) of the Law on Misdemeanours, the utilisation of the settlement mechanism will not prevent the application of the reduction. However, the board’s decision on the administrative fine and the matters within the scope of the final settlement text have a final nature and thus cannot be appealed before the administrative courts. As regards the applicability of the settlement mechanism, Law 4054 imposes no restriction in terms of the nature of the violation.
To explain in detail, according to the Regulation on the Settlement Procedures to be Applied During Investigations Regarding Anti-competitive Agreements, Concerted Practices and Decisions as well as Abuse of Dominance (‘Settlement Regulation’), if the Turkish Competition Authority ex officio invites the parties under investigation to settlement negotiations, the parties should declare whether they wish to accept this invitation within 15 days. Article 4(4) of the regulation provides that the Turkish Competition Board has the discretion to grant a settlement reduction of between 10% and 25%, indicating that the actual reduction in fine due to settlement will not be less than 10%. Article 6(5) of the regulation stipulates that the Turkish Competition Authority will inform the settling party of:
- the content of the allegations;
- the nature and scope of the alleged violation;
- the main evidence on which the allegations are based;
- the potential reduction rate to be applied in case of settlement; and
- the range of potential administrative fines which might be imposed on the settling party.
Following the settlement negotiations, the board will adopt an interim decision, which includes the following, among other things:
- the nature and scope of the alleged violation;
- the maximum rate of the administrative fines in accordance with the Regulation on Fines; and
- the reduction rate to be applied at the end of the settlement procedure.
If the settling party agrees on the matters set forth therein, it will submit a settlement letter which includes an express declaration of admission as to the existence and scope of the violation. Article 9(1) of the Settlement Regulation provides that the board will adopt its final decision to end the investigation within 15 days of submission of the settlement letter. The board’s final decision will include the finding of a violation and the administrative fine to be imposed on the settling undertaking.