Final and Interim Decisions of the Turkish Competition Board

November 2019 Can Yıldız
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Introduction

Pursuant to Law on the Protection of Competition numbered 4054 (“Law”), the Turkish Competition Authority (“Authority”) has been equipped with a broad range of powers in order to ensure the undisrupted flow of competition in the goods and services markets in Turkey. The Competition Board (“Board”), which is the decision-making and executive body of the Authority, scrutinizes the issues prohibited by the Law ex officio or upon complaints; it imposes administrative monetary fines on those that violate the Law and takes the necessary measures to terminate such violations; it approves mergers and acquisitions that result in permanent change in control, and conducts many other operations. The Board executes its operations and acts through the decisions it makes. In other words, competition law is mainly applied through the Authority’s examinations, as well as the decisions rendered by the Board.

In terms of legal characteristics, the decisions of the Board are economic law enforcement activities. In this context, each Board decision is an administrative act. Therefore, since the Board is an extension of the administration as an “independent administrative authority,” or as a regulatory institution, as is commonly expressed, the Board’s decisions are subject to administrative judicial review.

Under the Law, there are detailed procedural rules regarding the situations under which the Board will initiate an investigation, which powers it will practice in these investigations and to what extent, how long the investigations will last, the rights of the undertakings throughout the investigation process, how decisions will be made as a result of the investigation, and which sanctions may be imposed.

Based on these procedural rules, it is possible to examine the Board’s decisions in two groups: Final and interim decisions. This distinction is derived from Article 51 of the Law. As a matter of fact, while setting forth the quorums for meetings and decisions of the Board, the relevant provision explicitly refers to “final decisions,” and “decisions other than final decisions”. These decisions are examined in detail, below.

Final Decisions of the Board

Final decisions are decisions that can be directly appealed in the courts. In its final decisions, the Board is to convene with the participation of at least five members, including the President or the Vice President, and decisions are given by at least four members voting on the same side. In cases where the required quorum for the decision cannot be achieved in the first meeting, the President shall ensure the participation of all members in the second meeting. However, if this is not possible, the decision shall be made by an absolute majority of the participants. In this case, the meeting quorum cannot be less than five members, which must include the President or the Vice President. In the event there is a tie in the voting in the second meeting, the vote of the side with the President shall be deemed to be superior[1].

The final decisions of the Board are decisions, such as those made at the end of the investigation process, the decisions not to initiate an investigation / preliminary investigation, as well as negative clearance decisions, exemption decisions, and decisions regarding merger/aquisition transactions.

Decision not to launch Investigation / Pre-investigation

As stated in Article 42 of the Law, the Board is not required to initiate a preliminary investigation or an investigation of every complaint. The Board may, openly or tacitly, reject requests made by complainants. It is clearly regulated in Article 42/2 of the Law that these decisions are final. The relevant provision provides that anyone with a direct or indirect interest may resort to judicial remedy of the Board’s rejection decisions. The decisions of the Council of State also confirm this rule[2].

Decisions that can be taken as a result of an Investigation

As a rule, the decisions made by the Board as a result of investigations carried out within the framework of the procedure provided for in Articles 43-54 of the Law are final decisions. It is noteworthy that the title of Article 48 of the Law, in which the decision that was rendered as a result of the investigation, is entitled “Final Decision.

If, as a result of the investigation, the Board determines that the undertakings under investigation do not violate any provision of the Law - that is to say that competition is not restricted – the Board will decide that no violation has been made. This is a final decision, but the stakeholders may appeal the decision before the administrative courts.

On the other hand, in the event that any violation is determined - for example, if it is found that an agreement with a purpose or effect restricting competition, or that the dominant undertaking abuses its dominant position - the Board will prohibit this agreement/transaction. The Board may impose administrative fines pursuant to Article 16 of the Act upon undertakings investigated as a result of the violation. In addition, pursuant to Article 9/1 of the Law, the Board will render a decision to end this prohibited behaviour that violates competition, and will order any actions that must be fulfilled or avoided in order to reverse the violation.

Negative Clearance/Exemption Decisions

It is possible to apply to the Authority for examination and determination of whether the agreements between undertakings, decisions of association of undertakings and merger/acquisition transactions are within the scope of Article 4, 6 or 7 of the Law. If the Board renders such a decision, it will mean that the agreement/decision is not contrary to the Law. Pursuant to Article 13 of the Law, it is possible for the Board to revoke an earlier negative clearance by rendering a new decision. In addition, the negative decisions made as a result of fraud are regulated as “null and void.”

Similarly, if the conditions specified under Article 5 of the Law are met, or within the framework of the provisions of Communiqué on Exemption on Vertical Agreements No 2002/2, an agreement restricting competition in the sense of Article 4 may be exempted from the implementation of the Law. A Board decision to be taken in this regard will result in an agreement benefiting from the exemption.

Although there are discussions about whether negative clearance and individual exemption decisions are final decisions,[3] it is possible to conclude that these are the final decisions of the Board.

Although it can be said that the parties benefiting from the negative clearance and exemption decisions rendered by the Board cannot demand the annulment of a decision in the administrative courts if they have no interest in the annulment of such decision; other parties that have interest may still request an annulment. In addition, an exemption decision made on a timely or conditional basis may be requested to be annulled even by the beneficiary of the decision. Therefore, negative clearance and exemption decisions are among the final decisions of the Board. It can also be accepted that the decisions to reverse the previously granted negative clearance and exemptions are final decisions.

Decisions to be rendered as a Result of Evaluation of Merger/Acquisition Transactions

In accordance with Article 7 of the Law and Communiqué No. 2010/4 on Mergers and Acquisitions Requiring the Approval of the Competition Board, the approval and rejection decisions regarding merger/acquisition transactions subject to the approval of the Board should be final. As a matter of fact, it is possible that those who have interest in these decisions can request the annulment of such the decisions directly to the administrative courts. Furthermore, the executive nature of these decisions is undisputed.

In practice, however, it was observed that one Board decided to allow merger/acquisition transactions for approximately four months during the period when Board attendance fell from 7 to 4 members due to the expiration of the term of office of some Board members. On the other hand, it should only be possible for a Board convening with 4 members to provide sufficient quorum for interim decisions. In this context, it may be accepted that the Board considers the decisions regarding approval or rejection of merger/acquisition transactions as interim decisions, and acts with the sufficient quorum for the interim decisions to take such decisions.

In any case, since it is possible for those with an interest to bring these decisions to the courts, and the Board decisions rendered as a result of merger/acquisition notifications should be considered to be final.

In addition, as provided for in Article 10 of the Law, if the Board does not take any action within 30 days from the date of notification regarding a merger or acquisition, the relevant transaction shall be deemed to have been approved, and this implied permission transaction would be deemed as final.

Interim Decisions of the Board

Unlike its final decisions, the interim decisions of the Board cannot be the subject of an annulment case in administrative courts on their own. These decisions can only be brought forward for judiciary review, together with the final decisions.

Decision to launch Investigation / Pre-investigation

The preliminary investigation and investigation processes are essentially a mere step in the process for the Board to make its final decision. In this context, decisions for preliminary investigation or investigation are interim decisions. Therefore, when a Board decides to initiate an investigation, the decision as to the investigation itself may not be the subject of an annulment case prior to the conclusion of an investigation and the Board making its final decision.

Opinions of Non-executive Nature

The Board may give explanatory opinions as to the basis of the authority conferred on it by Article 9 of the Law. Since such decisions do not have an executive result, they cannot be subject to annulment proceedings and, thus, cannot be considered as final decisions.

Decisions regarding Interim Measures

Articles 9/4 and 11/1(b) of the Law regulated the Board’s power to take interim measures. Accordingly, if the Board considers that there is a possibility of serious and irreversible damage, it may take interim measures in a manner that protects the situation before the violation can occur, provided that it does not exceed the scope of the final decision.

It is difficult to determine whether interim measure decisions are, in actual fact, final or interim. In fact, an indication that interim measure decisions are not final decisions is mentioned in the third paragraph of Article 51 of the Law, where the quorums for meetings and decisions regarding interim decisions are set forth. The wording of the Article names interim measure decisions as interim decisions by stating, “In particular, measures and recommendations” requires a quorum for interim decisions. On the other hand, it is clear that precautionary decisions can be the subjects of administrative lawsuits, separate from the final decision, as asserted in the doctrine,[4] as well as in practice. Article 55 of the Law prior to the 2012 amendment clearly states that interim measure decisions can be the subject of a lawsuit on their own. Although it is not explicitly stated in the current state of the provision that the interim measure decisions can be the subject of a lawsuit similar to how a final decision can be, it must be accepted that interim measures can directly be the subject of an annulment lawsuit considering the right of defence, since interim measures are likely to directly and significantly affect the rights of the undertakings. In any case, it should be emphasized that interim measure decisions are interim decisions in terms of meeting and decision quorums.

[1] Law No. 4054, Art. 51.

[2] For example, the judgment of the 10th Administrative Chamber of Council of State, No. E. 2002/4519 K. 2003/3811, 12.11.2003.

[3] Aslan, İ. Yılmaz: Rekabet Hukuku. 3th ed., 2005, p. 797.

[4] Aslan, p. 786.

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