Applicability of the Law No. 7440 in Terms of Administrative Fines Imposed by the Competition Board

Through the Law No. 7440 on Restructuring of Certain Receivables and Amending Certain Laws (Law No. 7440) published in the Official Gazette dated 12.03.2023 and No. 32130, procedures and principles regarding restructuring of the certain public receivables are regulated. Our client alert dated 24.03.2023 can be accessed here.

One of the public receivables included in the scope of the restructuring is the administrative fines for the periods before 31.12.2022. A significant part of the previous restructuring laws stipulated that administrative fines imposed by the Competition Board (Board) were outside the scope of the above-mentioned restructuring opportunity. However, the Law No. 7440 does not include such a provision. Therefore, administrative fines imposed by the Board within the scope of Law No. 4054 on the Protection of Competition are also included in this scope.

In addition, Article 3, paragraph 4 of Law No. 7440 regulates the restructuring of receivables at the litigation stage filed against administrative sanction decisions regarding administrative fines. In this respect, the following possibilities may be taken into consideration regarding the administrative fines imposed by the Board:

• In cases where an administrative fine is imposed on the undertaking by the Board’s short-form decision, but the reasoned decision has not yet been notified, the restructuring can be benefited from by paying %50 of the fine, since the period for filing a lawsuit against this decision has not yet expired. Even if it is questionable whether the restructuring can be benefited from in this scenario, we recommend making an application in order to avoid any loss of rights. In this context, it is considered that the Competition Authority is the authority where the restructuring application should be made pursuant to Article III-A-(ii) of the relevant Communiqué. However, in order to avoid any loss of rights, it would be beneficial to apply to the tax office simultaneously. In case the administration rejects the restructuring application, we believe that the matter may be brought before the court.
• Within 60 days following the notification of the Board’s reasoned decision regarding the administrative fine, a lawsuit can be filed before the administrative courts for the annulment of the decision. In cases where the above-mentioned period for filing a lawsuit has not yet expired, or in cases where a lawsuit has been filed but the court has not yet reached a decision, the restructuring can be benefited from by paying 50% of the fine.
• If a lawsuit has been filed against the reasoned decision of the Board regarding the administrative fine, and the latest decision is in favor of the taxpayer (cancellation), restructuring can be benefited from by paying %10 of the fine.

If the penalty amount to be paid according to the above-mentioned stages is paid together with the amount to be calculated based on the D-PPI monthly change rates instead of the secondary receivables applied to such penalties; the collection of the remaining penalties and all of the secondary receivables related to this receivable is waived by the administration.

Those who apply to benefit from the provisions of Law No. 7440 are required not to file a lawsuit or to withdraw the lawsuits filed.