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to commence an investigation into contracts, concerted Within the aforementioned amendment, the Board is allowed
practices and decisions of association of undertakings which to reopen an investigation in the following cases:
are below the certain market share and turnover thresholds
determined by Board. Hard-core restrictions such as territory a) substantial change in any aspect of the basis of the
or customer sharing, control of supply and price fixing will be decision,
exempted from this principle. b) the relevant undertakings' or association of
undertakings’ non-compliance with the commitments,
• Collection of data during on-site investigation process
c) realization that the decision was made on deficient,
incorrect or fallacious information provided by the
The Law No.7246 also includes a provision that the authority parties.
is empowered to analyze and make copies of books, any
data kept within physical and electronic environment and There are two issues that may be taken into consideration in
information systems during on-site inspections.
this amendment. Firstly, behavioural and structural remedies
are currently being applied to in practice for the merger &
• Structural and behavioural remedies for anti- acquisition transactions even though the term “commitment”
competitive conduct has already been included within the heading and the
content of the investigation provision of the Competition
The Law No.7246 aims to entitle the Board to the power Act and some amendments have been made accordingly. In
to apply structural remedies for anti-competitive conduct other words, it is understood that the term “commitment”
infringing Articles 4, 6 and 7 of the Competition Act, will have a broader application than the merger & acquisition
provided that behavioural remedies are first applied and transactions with this new amendment. Accordingly, it is
failed. Accordingly, at least 6 months will be given to the possible to state that there is a need for new regulations on
related undertaking to comply with the structural remedies how these commitments shall be applied to, otherwise the
determined by the Board. It should be noted that, both lack of such regulation may cause some indefinite and broad
behavioural and structural remedies should be proportionate implementations of this provision.
to and necessary to end the infringement effectively.
The second issue is to determine the exact meaning of
At this point, as expressly mentioned in the preamble of the term of “settlement”. At this point, the Regulation on
the The Law No. 7246, structural remedies come into the the Active Cooperation for the Exposure of the Cartels
view as an exceptional method and provides protection for (“Regulation”) may be a guide in this regard. According to
the undertakings against the precautions that may be taken the Article 5 of the Regulation;
by the Board since it is the condition that the behavioural
remedies shall be initially applied to and such remedy shall From the decision of the Board to conduct a preliminary
remain inconclusive.
investigation until the notification of the investigation
report, the penalties to be given to undertakings that
• Settlement and commitment mechanism provide the information and documents and fulfill the
conditions specified in the Article 6 of this Regulation
According to the amendment that made within the scope of separately from its competitors, but cannot benefit from
Article 43, in the investigations initiated by the Competition the regulation regarding the non-punishment provision
Authority, settlement and commitment methods are stated in the Article 4 will be reduced. In this case, the
introduced and a time limit is set for entities to introduce penalties to be imposed on the managers and employees of
their settlement submissions, including explicit acceptance the undertakings that accept the violation and cooperate
of the violation. According to the Law No.7246, it is actively will also be reduced. In this context; a) The penalty
possible to settle with an undertaking or associations of for the first undertaking is reduced between one third and
undertakings which an investigation is initiated upon them one half. In this case, the penalties to be given to managers
and accepts the existence and scope of the violation until and employees who accept violations of the undertaking
the investigation report is served. Board is entitled to reduce and actively cooperate may be reduced not less than one
the administrative fine up to 25% for the violation, once the third or may not be given. b) The penalty for the second
settlement submission is filed. undertaking is reduced between one fourth and one third.
In this case, the penalties to be given to managers and
Within Law No.7246, commitment procedure will allow the employees who accept violations of the undertaking and
undertakings or association of undertakings to voluntarily actively cooperate may be reduced not less than a quarter
offer commitments during a preliminary investigation or full- or may not be given. c) Penalties for other undertakings
fledged investigation to eliminate the Authority's competitive are reduced between one sixth and one fourth. In this case,
concerns regarding Articles 4 and 6 of the Competition Act. the penalties to be given to the managers and employees
If commitments will be deemed as sufficient to eliminate who accept violations of the undertaking and actively
competitive concerns, the Board can decide not to launch cooperate may be reduced not less than one sixth or may
a full-fledged investigation following the preliminary not be given.
investigation or to end an on-going investigation without
completing the entire investigation procedure. However, As a result of the evidence presented, if the penalty should
commitments regarding explicit and gross violations such be increased due to the prolonged duration of the violation
as territory or customer sharing, control of supply and price and similar reasons, undertaking that first submitted the
fixing will not be accepted. The Board will provide the details relevant evidence, and the managers and employees of
of these new procedures by secondary legislation. this undertaking who accepted the violation and actively
cooperated will not be affected by increase of penalties.

14 July 2020