On 16 March 2021, Turkey issued the "Communiqué on the Commitments Offered During the Preliminary Investigation and Investigation on Restrictive Agreements, Concerted Practices, Decisions and Abuse of Dominant Position" numbered 2021/2 ("Communiqué 2021/2"), which sets out the details of the conciliation procedure under Article 43 of the Law on Protection of Competition No. 4054 ("Law").
Background
As mentioned in our previous the Law Now article, the Law was significantly amended after 26 years and conciliation procedures were introduced to comply with EU practice, improve time efficiency and reduce losses and costs to the public.
Consequently, undertakings or associations of undertakings may offer commitments during a preliminary investigation or an enquiry, except in cases of gross infringements such as price fixing, sharing of customers or territories and restrictions on supply.
Communiqué 2021/2 was issued by the Turkish Competition Authority ("Authority") to set out further details for the commitment proceedings.
General provisions of the obligation in the course of conciliation proceedings
Undertakings or associations of undertakings may submit written commitments during a preliminary investigation or within three (3) months of an investigation, except in the case of gross violations as described above.
After the submission of the commitment, the Competition Board ("Board") will conduct an assessment of the aspect of the gross violation of the agreement, decision or application in question and decide whether to initiate the conciliation meeting or reject the commitment request and terminate the conciliation proceedings. During the conciliation talks, which may be conducted in an oral or written procedure, the Board should provide information on the documents and information that form the basis for the determination of the facts.
If the parties decide to submit the commitment document during the conciliation talks, they must submit the commitment document to the Authority within the time limit set. The copy of the document and its summary must be free of business secrets and confidential information (the content of the commitment document is also set out in Communiqué 2012/2). The commitment document may be submitted to the Authority unilaterally or multilaterally depending on the circumstances.
The commitment must be appropriate to the matter, realisable in the short term and effectively applicable. General pledges on complying with the provisions of the legislation and the commitments of third parties are inadmissible.
If the parties acquire approval for their commitment, the Board does not open an investigation, terminate the ongoing investigation or seek comments from third parties in this matter. If, on the other hand, the commitment is rejected, the Board may give the applicant time to amend the commitment or close the commitment proceedings. If the Board concludes that the competition law issues can be remedied with the commitment, the Board may make the commitment binding on the related parties. Methods such as regular reporting, the appointment of third parties as controllers and cooperation with professional associations or public institutions can ensure that compliance with the commitment is monitored.
For more information on the application of the new regulations, please contact your regular CMS advisor or the local CMS experts: Dr. Döne Yalçın or Arcan Kemahlı.
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