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It is probable to face with some difficulties in practice
between the terms of “settlement” and “cooperation”
particularly for the investigations made on the cartels and
to cause some hesitations on the implementation of the
discount rates for the penalties.

• Self-assessment procedure

Despite the fact that the purpose of the amendment
regarding self-assessment principle is to provide legal
certainty as to the individual exemption regime by clarifying
that the "self-assessment" principle which applies to
agreements (as well as concerted practices and decisions of
associations of undertakings) that may potentially restrict
competition, the relevant amendment also causes some
uncertainty on the implementation of the exemption regime.

It is determined in the Law No.7246 that the agreements,
concerted action and decisions made between the
undertakings may be exempted from the application of
the Article 4 of the Competition Act provided that “the
determined conditions fully exist”. Accordingly, even
though there is still an opportunity to apply for an individual
exemption, the expression in the old regulation stating
that “decision on the exemption may be taken” has been
replaced with the expression of “such act is exempted”. This
amendment proves that the legislator tries to strengthen
the system in which there is not a need for an application
for individual exemption and self-assessment procedure
is sufficient in this regard. At this point, it is possible to
state that this provision may cause uncertainty on how the
assessment of the agreements included within the group
exemption will be made and what the consequences of the
lack of one of these conditions are for the group exemptions.

Conclusion

The Law No.7246 contributes to an improvement of the
essential principles of the Competition Law by providing a
different perspective, however, it leaves some points open
and brings issues into question regarding the meaning and
the assessment of the relevant amendments in practice.
Notwithstanding, in the light of these amendments, it is
possible to state that the Law No.7246 essentially (i) clarifies
certain mechanisms in the Competition Act which might have
led to legal uncertainty in practice to a certain extent, and
(ii) introduces new mechanisms as to the selection of more
significant violations and cases for the Authority to focus
on, and solutions such as a new substantive test for merger
control, and underlines behavioural and structural remedies
in order to prevent anti-competitive conducts, and brings
Turkish competition law closer to the EU law.

Explanations in this article reflect the writer's personal view on the
matter. EY and/or Kuzey YMM ve Bağımsız Denetim A.Ş. disclaim any
responsibility in respect of the information and explanations in the
article. Please be advised to first receive professional assistance from
the related experts before initiating an application regarding a specific
matter, since the legislation is changed frequently and is open to different
interpretations.
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