As per the Amendment Law regarding the Law on Protection of Competition numbered 7246, published in the Official Gazette dated 24 June 2020 and numbered 31165(“Amendment Law”), some amendments to the Law on Protection of Competition numbered 4054 (“Law”) as explained below have been introduced:
- In line withthe amendment made to article 5 of the Law titled “Exemption”, in case all the conditions stated below exist,agreements between undertakings, concerted practice andthe association of undertakings’ decisions shall be exempt from article 4 of the Lawtitled Agreements, Concerted Practice and Decisions Restricting Competition. Such conditions are:
- Ensuring new developments and improvements or economic or technical development in the service providing related to the production or distribution of goods,
- The consumer benefitting from the aforementioned,
- Not eliminating competition in a significant part of the relevant market,
- Not limiting competition more than the objectives set out in paragraphs a. and b above.
Furthermore, the relevant undertakings or association of undertakings may apply to the Competition Authority (“Authority”) in order for the Competition Board (“Board”) to determine whether they meet the exemption conditions.
- In accordance with the addition made to article 7 of the Law titled “Mergers or Acquisitions”, it has been determined that the merging ofone or more undertakings with a purpose to create a dominant position or strengthening its dominant position, which would result in significant reduction of effective competition within a market for goods and services within the whole or a part of the country, is illegal and prohibited. As such, the practice of reducing the effective competition within the scope of the examination of mergers and acquisitions by the Board has been provided.
- With the amendment to article 9 of the Law titled “Termination of Breach”, if the Board, upon notification, complaint or the request of the Ministry of Commerce (“Ministry”) or ex officio, determines that articles 4, 6 and 7 of the Law are breached, it has been foreseen that, the Board shall notify the related undertaking or associations of undertaking of the behaviors which should be performed or avoided for ensuring the competition and structural measures to be takenin its final decision. Both behavioral and structural measures shall be proportionate and necessary. The structural measures shall only be applicable if the behavioral measures have failed and in case it is determined that the behavioral measures have failed in the Board’s final decision, the relatedundertakings or associations of undertaking will be granted at least 6 months to comply with structural measures.
- Under article 15 of the Law titled “On-the-Spot Inspection”,it has been regulated that if the Board deems necessary, it caninspect the undertakings or associations of undertaking,examine their records, paperwork and documents and take copies.
- It has been set forth in article 41 of the Law titled“Conclusion of Preliminary Inquiry”that the Board may refrain from pursuing an investigationrelated to the agreement, concerted practice and the association of undertakings’ decisions and actions which do not noticeably harm the competition in the market, excluding explicit and severe violations such as price setting among competitors, market or customer allocation and restriction of supply.
- The title of article 43 of the Law has been amended as “Commencement of Investigation, Commitment and Reconciliation” and the below provisions have been introduced by the Amendment Law:
- During a preliminary research or investigation, a commitment may be submitted by the relevant undertaking or association of undertakingin order to eliminate the competition problems arising under articles 4 or 6 of the Law. If the Board decides that the competition problems can be eliminated with these commitments, the Board can make such commitments binding for the relevant undertakings or associations of undertaking and can decide to not investigate or close the opened investigation. Commitments related to explicit and severe violations such as price setting among competitors, market or customer allocation and restriction of supply shall not be accepted.
- The Board may reopen an investigation due to following reasons after accepting commitments according to the above paragraph:
- If there is a significant change in the elements that serve as basis of the decision.
- If the relevant undertakings or associations of undertaking are in violation of their commitments.
- If the decision has been made based on incomplete, incorrect or misleading information provided by the parties.
- After the commencement of the investigation, the Board can initiate settlement procedures upon parties’ request or ex-officio, taking into consideration the benefits resulting from the rapid completion of the investigation process and different views on the existence or scope of the violation. It has been stated that settlement may be completed until the notification of the Board’s investigation report to the investigated undertakings or associations of undertaking. In this scope, the Board shall set a definite period for the parties to submit a settlement documentand the notifications made after definite period shall not be taken into consideration. It has been set forth that ultimately, the investigation shall be terminated with a final decision including the determination of the breach and administrative monetary fines.
- It has been determined that, the administrative monetary fines can be reduced by up to 25% as a result of the settlement procedure. In case the process is finalized by settlement, the administrative monetary fine and other matters included within the settlement document cannot be made subject of a lawsuit to be filed by the parties.
- Lastly, with the amendment made to article 45 of the Law titled “Notice and Reply”, the Board has been enabled to extend the periods for the parties to submit their defenses during the investigation phase only for once and for the same period at mostif the parties provide reasonable grounds.
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