Ercüment Erdem Att. Elif Mungan Ozdogan

The Commitment Mechanism in Competition Law Investigations in Turkey and the European Union

November 2020

Introduction

Law numbered 7246, Amending the Law on Protection of Competition numbered 4054 (“Amending Law”), has been published in Official Gazette numbered 31165, and dated 4 June 2020, entered into force on the same day. This Amending Law has brought significant changes to Turkish competition law practice. The introduction of the commitment mechanism within preliminary and fully fledged investigations was one of the noteworthy changes that the Amending Law provided. Accordingly, through the Amending Law, and in line with the European Union legislation, the commitment mechanism has been included in Article 43 of the Law on Protection of Competition numbered 4054 (“Law numbered 4054”), which regulates “Initiating an Investigation.”

The relevant addition included in Article 43 of Law numbered 4054 is as follows:

Relevant undertakings, or associations of undertakings, may offer commitments in order to eliminate the competition problems under Articles 4 or 6 that may arise during an ongoing preliminary inquiry or investigation process. If the Board decides that the proposed commitments can resolve the competition problems, it may render these commitments binding for the relevant undertakings, or associations of undertakings, and decide not to initiate an investigation, or to terminate an ongoing investigation. Commitments shall not be accepted for naked and hard-core infringements, such as price-fixing between competitors, region and customer allocation, or supply restriction. The rules and procedures concerning the application of this paragraph shall be established with a communiqué issued by the Board.”

Accordingly, within the scope of the relevant Article, the parties may offer commitments in an on-going preliminary investigation or fully fledged investigation, with regard to Articles 4 or 6 of Law numbered 4054. If the Competition Board (“Board”) finds the offered commitments to be appropriate, the Board may render these commitments binding for the relevant undertakings and decide not to initiate a fully fledged investigation, or to terminate the ongoing investigation. On the other hand, with regard to a number of infringement types, the commitment mechanism shall not work. These types of infringements are the hard-core infringements, such as price fixing between competitors, region and customer allocation, or supply restrictions that have been included in the “cartel” definition within the Regulation of Administrative Monetary Fines.

In addition, after a decision regarding the termination of the investigation or the preliminary investigation is taken, the Board may re-launch an investigation if:

  • There is a substantial alteration in any of the factors upon which the decision was based;
  • The relevant undertakings or associations of undertakings are in violation of the commitments given; and/or
  • The decision was based on missing, false, or misleading information presented by the parties.

The commitment procedure aims to prevent the damages that occur as a result of competition law infringements at an early phase and, therefore, realize savings in time and costs for the public institutions and undertakings, which occur due to the detailed investigation processes that is required for the determination of the competition law infringements. As a result, when compared to the regular investigation processes, the investigations in which the commitment mechanisms are activated are concluded within a shorter timeframe.

Furthermore, from undertakings’ perspectives, faster proceedings and the absence of the finding of an infringement, may be important reasons to offer commitments.

Article 9 of Council Regulation (EC) No. 1/2003 on 16 December 2002, on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (“Regulation numbered 1/2003”), sets forth the commitment procedure. Through the Amended Law, the alignment between Turkish competition law and European Union legislation increases.

The First Commitment Submitted in Turkey

The commitment mechanism that came into Turkey, in June of 2020, has been rapidly implemented in real life in the ongoing investigation with regard to the undertakings that provide services on temporary customs stocking. The very first implementation has been announced on the Competition Authority’s website (“Announcement”).[1]

According to the Announcement, within this investigation[2] that concerns the determination as to whether the undertakings, which provide services on temporary customs stocking, infringed Article 6 of Law numbered 4054, Havaalanları Yer Hizmetleri A.Ş. has offered a commitment and the Board, through its decision dated 5 November 2011, has concluded that the relevant commitment releases any competitive concerns. As a result, the commitment process for the relevant case has been completed in a short time, as being one month, and the investigation has been terminated with regard to the relevant undertaking.

Rules and Procedure

Article 43 of Law numbered 4054 states that the rules and procedures concerning the application of this paragraph shall be established through a communiqué issued by the Board. However, the relevant communique has not yet been issued. The current procedure is described as follows: When an undertaking wishes to offer commitments in an investigation or preliminary investigation, it shall submit a statement to the Competition Authority that indicates its’ intent to submit a commitment, as well as a meeting request. In the meeting, it shall explain its draft commitments that shall release any competitive concerns. Following the meeting with the Competition Authority, the undertaking is expected to submit the formal commitment statement. Afterwards, the Board shall decide with regard to the commitments’ convenience and its’ decision.

In European Union practice, the “Manual of Procedures on the Internal DG Competition working documents on procedures for the application of Articles 101 and 102 TFEU” (“Manual”) lights the way.[3] According to the Manual, undertakings may contact the DG Competition at any point in time to explore its’ readiness to enter into commitment discussions. A State of Play meeting will be offered to parties that signals an interest in discussing commitments. The parties may ask questions in the State of Play meeting. Afterwards, the parties submit a "term sheet" describing the main elements of the commitments, but sometimes are ready with a first draft of a commitment text. Once the case team is convinced that the commitments informally proposed by the undertaking may address the competition concerns, and that the undertaking is seriously interested in submitting adequate formal commitments, it will propose to draft a Preliminary Assessment. The Preliminary Assessment serves as an important basis for the parties to formulate appropriate commitments fully addressing the competition concerns expressed by the Commission, or to better define previously discussed commitments. The formal meetings commence following the acceptance of the Preliminary Assessment.

The Commission may ask the parties to make necessary amendments on the commitments before the market test stage. Should the commitments be found appropriate by the case handlers, the market test stage approval of the competition commissioner is required.

Within the stage of "market test,” the Commission is obliged to publish a concise summary of the case and the main content of the commitment proposal, and to give third parties a chance to submit their observations before it can adopt a decision pursuant to Article 9 of Regulation numbered 1/2003. The market test is sent to the complainant, as well, if the investigation starts upon a complaint. The decision pursuant to Article 9 of Regulation numbered 1/2003 is taken, if the commitments are found to be appropriate, and its’ bindingness is documented.

Conclusion

It is opined that the commitment mechanism entered into force will have positive consequences for both the Competition Authority and the undertakings. As noted, above, the commitment procedure will be beneficial for many reasons, such as the savings of time and costs that occur due to the detailed investigation processes, the shortening of the investigation time, and the absence of finding an infringement. As a matter of fact, the Announcement signals that it will be welcomed with sympathy by the undertakings, as it shows that the commitment mechanism was implemented quite soon after its enforcement.

[1] https://www.rekabet.gov.tr/tr/Guncel/rekabet-hukukunda-yeni-bir-donem-taahhut-5ca6e0b74220eb11812200505694b4c6

[2] Investigation conducted via Competition Board decision, dated 24.07.2020 and numbered 20-35/460-M

[3] http://publications.europa.eu/resource/cellar/cd7d54b9-dd45-45fb-94e9-7d761533a8b1.0001.03/DOC_1