TURKISH COMPETITION LAW ENFORCEMENT: Institutional Structure, Case Procedures and Judicial Review Eurasian Antitrust Forum Almaty, 27 February 2018 Ebru İNCE Competition Expert Turkish Competition Authority (TCA)

general ınformatıon about turkısh competıtıon act and tca OUTLINE general ınformatıon about turkısh competıtıon act and tca I case handlıng procedures II judıcıal revıew of tca’s decısıons III

general ınformatıon about turkısh competıtıon act and tca OUTLINE general ınformatıon about turkısh competıtıon act and tca I Case handlıng procedures II Judıcıal revıew of tca’s decısıons III

The Act no.4054: The Act on the Protection of Competition TURKISH COMPETITION ACT Article 4: Anticompetitive agreements and concerted practices The Act no.4054: The Act on the Protection of Competition Main Articles: Article 4 Article 6 Article 7 Article 6: Abuse of dominance Adopted in 1994 Took effect in 1997 Article 7: Anticompetitive concentrations

Independent administrative body TURKISH COMPETITION AUTHORITY (TCA) Established in 1997 Independent administrative body Decision-body: Competition Board (appointment by Council of Ministers) Quasi-judicial proceedings

general ınformatıon about turkısh competıtıon act and tca OUTLINE general ınformatıon about turkısh competıtıon act and tca I II Case handlıng procedures Antıcompetıtıve agreements/Conduct (art. no. 4&6) Merger Control (art. no. 7) Judıcıal revıew of tca’s decısıons III

Articles 8-15: Powers of the Board PROCEDURAL FRAMEWORK FOR COMPETITION CASES Solid Framework: Detailed governing rules in the Competition Act (Articles through no 8-17 & 40-55) Several secondary regulations and notices also reinforce Articles 8-15: Powers of the Board Articles 16-17: Administrative Fines Articles 40- 55: Procedure in Examinations and Inquiries of the Board

PROCEDURE IN ANTICOMPETITIVE AGREEMENT/CONDUCT CASES (artıcles 4&6 cases) Preliminary Investigation Articles 40-42 30 days Article 44 Article 14: Information Request Article 15: On-the-spot inspections (dawn-raids) Investigation Articles 43-48 6 months +≤6 months Article 44 Article 14: Information Request Article 15: On-the-spot inspections Initiation of an Inquiry Article 40 upon application (by consumers, gov’t bodies, undertakings, informants) Ex-officio

INITIATION OF AN INQUIRY If the Board does not deem it serious Explicit Rejection APPLICATION If the Board does not respond within 60 days Implicit Rejection If the Board deems it serious or ex-officio Opens a preliminary investigation or an investigation

PRELIMINARY INVESTIGATION PHASE Open Investigation Investigation Phase PRELIMINARY INVESTIGATION PHASE Not to open an investigation Art. 9/3 decision Advocacy Judicial review Board decision to open preliminary investigation Appointment of rapporteurs/case handlers (competition experts and assist. experts) 30 DAYS Art. 14: Information Request Art. 15: On-the spot Inspection 10 DAYS Board decision Rapporteurs present the preliminary investigation report to Board

INVESTIGATION PHASE Judicial review FINAL DECISION 10 to 20 months Hearing (30 to 60 days after 3rd defence) 30 days (+30≥) 1st written defence Additional views of rapporteurs 15 days Start of the investigation Notification of report 30 days (+30≥) 2nd written defence 15 days 30 days if no Hearing FINAL DECISION Notification of investigation decision 15 days Judicial review Investigation report 6 months (+6 months≥) 30 days (+30≥) 3rd written defence 10 to 20 months

PROCEDURE IN MERGER CONTROL (artıcle 7 cases) Mergers, acqusitions and joint ventures leading to change in «control» & exceeding certain turnover thresholds require the authorization of the Competition Board in order to become legally valid, therefore should be notified to TCA. Preliminary Examination Examination by case handlers in 15 days+ Board decision in 15 days Final Examination Same procedure as Investigation.

general ınformatıon about turkısh competıtıon act and tca OUTLINE general ınformatıon about turkısh competıtıon act and tca I Case handlıng procedures II Judıcıal revıew of tca’s decısıons III

Appeal courts: District Administrative Courts JUDICIAL REVIEW OF TCA’S DECISIONS (I) Article 55: «Suits shall be filed against administrative sanctions before the competent administrative courts. All types of suits filed against Board decisions shall be deemed a priority matter… Appealing against decisions of the Board shall not cease the implementation of the decisions, and follow up and collection of administrative fines”. Administrative sanctions refer to final decisions, measure decisions and administrative fine decisions of the Board Appeal courts: District Administrative Courts Competent administrative courts refer to First Instance Courts in Ankara Last Resort: Court of State

The party can appeal the decision and the judgement JUDICIAL REVIEW OF TCA’S DECISIONS (II) Article 55: «…Appealing against decisions of the Board shall not cease the implementation of the decisions, and follow up and collection of administrative fines»”. Court of State (Last Instance Court) Notification (publication of reasoned decision) The party can appeal the decision and the judgement Rejects First Instance Court District Administrative Court Board Decision 60 days Accepts Board has to take necessary action in 30 days but can appeal the judgment By persons whose interests are breached

JUDICIAL REVIEW STATISTICS # of BOARD’s FINAL DECISIONS in years Year Anticompetitive Agreements/Conduct Merger 2017 112 184 2016 116 209 2015 124 158 # of DECISIONS REVIEWED BY COURTS in years Year # of cases reviewed by Courts #of annulments Annulment grounds: 2017 115 9 «unlawful not to launch investigation when sector regulator was present» «relevant product market was misidentified» «examinations were incomplete» 2016 90 10 2015 143 24

THANK YOU