Recent Developments in the Right of Access to Files
Introduction
The parties of an investigation that is conducted in accordance with the Act on the Protection of Competition No. 4054 (“Competition Act”) may enjoy the right to access the files concerning them that are drawn up by the Competition Authority (“Authority”). The procedures and principles related to use of this right are regulated via Communique on the Rules for Access to Files and the Protection of Trade Secrets No. 2010/3 (“Communiqué”). For the parties, it is very important to exercise their right to access to files properly, since the relevant right has a direct correlation to their right to defense. Therefore, this article focuses on the discussions that may rise during the exercise of the right to access the files in light of the recent Competition Board (“Board”) decisions.
Legal Background
Article 44(2) of the Competition Act (Collecting Evidence and Informing the Parties) states that those parties that are notified of the initiation of an investigation against them may, until they have petitioned for the right to a hearing, request a copy of any documents drawn up within the Authority concerning them and, if possible, a copy of any evidence obtained in the matter. In addition, Article 44(3) sets forth that the Board may not base its decisions on issues about which the parties have not been informed and/or have been granted the right to defense. The relevant article indicates that providing the documents and information about the concerned parties is related to the right to defense.
Moreover, the Communique regulates two subjects. Firstly, the procedures and principles related to the use of the right to access files. Secondly, the determination of the trade secrets within the information discovered during the application of the Competition Act, and the procedures and principles related to the protection of information and documents classified as trade secrets.
Right of Access to Files
According to the Communique, the parties may use their rights only once, if no new evidence is discovered during the investigation. The use of the right to access files comes with two exceptions: The Authority’s internal correspondence, and the trade secrets and confidential information related to the other undertakings. Accordingly, the parties may have access to all kinds of evidence discovered and documents prepared concerning them within the Authority, except the Authority’s internal correspondence and information and documents, including trade secrets and confidential information related to other undertakings, the association of undertakings and persons.
The Authority’s internal correspondence is defined as the correspondence between the units that fall under the actions to prepare for the Board decisions. Moreover, the Authority’s internal correspondence is not entirely excluded from the scope of this right. Accordingly, the parties may examine the Authority’s internal correspondence that has the quality of justifying or accusing evidence, and the documents submitted in the scope of the Regulation on Active Cooperation for Detecting Cartels (Active Cooperation/Leniency Regulation) (“Leniency Regulation”) at the Authority’s head office.
Once the parties petition their requests to the Authority, the investigation committee evaluates the party’s’ requests to access files. If the committee decides that the request is not entirely, or partly appropriate, the Board will render a decision on the relevant request. The Board notifies the requesting parties of its reasoned decision.
The Authority may apply different procedures while allowing parties access to the files. By considering the parties’ relevant requests, the Authority may allow the parties to copy the files via photocopy, or it may provide them with electronic copies. On the other hand, the information provided within the scope of Article 6(3) and 9(3) of the Leniency Regulation, or the Authority’s internal correspondence that justifies, or has the quality of accusing, the evidence shall be examined at the Authority’s head office.
The Recent Practice
The recent Board decisions set forth that the method of using the right to access files has become a controversial topic. This is due to the efficient use of the relevant right has critical importance for the investigation parties, since efficient access to files affects the defense power of the parties’ and, therefore, has the power to change the course of the investigations.
The Board has evaluated a number of file access requests in the investigation concerning corporate loan markets.[1] Accordingly, the Board has decided that the requesting parties may evaluate the documents obtained from private sector public persons (“Authority’s internal correspondence”) and the leniency request along with its annexes in the Authority’s head office. The Board has not allowed the requesting parties to take any electronic versions or photocopies of the documents. It is also noted that the parties cannot take any records during the file access and, within that scope, they cannot bring any device/objects with them which may take record of the documents, such as telephones, recording machine, memory sticks, cameras or notebooks.
The Board took a similar approach in a recently finalized investigation that was conducted in the flat glass market. In parallel with the banking investigation, the Board decided that the requesting party may evaluate the documents obtained from dealers (“Authority’s internal correspondence”) at the Authority’s head office. The Board has not allowed the requesting party to take any electronic version or photocopies of the documents.[2]
On the other hand, the Board has adopted a different approach in two recent investigations concerning the electricity market. In the Enerjisa decision, the correspondence between the Energy Market Regulatory (“EMRA”) and the Authority has been classified as the Authority’s internal correspondence, and it is opened to the party.[3] Unlike the Board decisions explained, above, in the Enerjisa decision, the Board has allowed the evaluating parties to take notes during their file access. On the other hand, similar to the above-mentioned decisions, the Board has not permitted the parties to take any electronic versions or photocopies of the documents. The Board has adopted the same approach in the Akdeniz Elektrik decision.[4]
Comment
We observe that the Board decisions clarify the methods of using the right to access files. In recent investigations, it has been decided that the evaluating parties cannot take any records, including taking notes, during their file access to the documents that are classified as the Authority’s internal correspondence at the Authority’s head office. Surprisingly, more recent electricity investigations showed that while the parties are not permitted to take records of the Authority’s internal correspondence, they are allowed to take notes during their access. The reason of this change can be the Board’s different evaluation based on the solid facts of the recent cases, or the objections of the interested parties in the referred to investigations. In fact, the efficient use of the right to access files has critical importance for the parties. Beyond any doubt, the freedom to take notes during file access will have a positive effect on the investigation party’s rights of defense.
[1] The Board decisions: No:17-16/234-99 (15 May 2017), No: 17-16/235-100 (15 May 2017), No: 17-18/273-117 (1 June 2017), No: 17-18/274-118 (1 June 2017), No: 17-18/272-116 (1 June 2017).
[2] The Board decisions, No: 17-22/352-157, 13 July 2017.
[3] The Board decisions, No: 18-06/92-47, 20 February 2018.
[4] The Board decisions, No: 17-39/624-271, 28 November 2017.
All rights of this article are reserved. This article may not be used, reproduced, copied, published, distributed, or otherwise disseminated without quotation or Erdem & Erdem Law Firm's written consent. Any content created without citing the resource or Erdem & Erdem Law Firm’s written consent is regularly tracked, and legal action will be taken in case of violation.
Other Contents
At the meeting of the Fédération Internationale de Football Association (“FIFA”) held on 16 December 2022, the FIFA Council approved the FIFA Football Agents Regulations (“FFAR”). In the FFAR, various amendments have been made, such as the introduction of a maximum service fee limit that football agents are...
Resale Price Maintenance (RPM) is still considered a hardcore restriction under the recently revised Vertical Block Exemption Regulation (VBER), which means that it cannot benefit from a statutory exemption under Article 101(1) TFEU, unlike certain other types of vertical agreements. However, it has been debated...
In competition law, it is important to accurately determine the concept of undertaking, especially in terms of mergers and acquisitions. Therefore, the concept of economic entity aims to reveal the economic units covered by the undertakings. The relationship between the concept of economic entity and family ties comes...
In these days when the Competition Board (“Board”) frequently imposes administrative fines for preventing on-site inspections and both the Competition Authority (“Authority”) and undertakings take legal and technical measures regarding on-site inspections, a striking development has occurred. In its decision...
Online advertising has become an important source for businesses for promoting products and services and meeting consumers, as a result of the rapid development of information technologies and increase in the use of internet. Delivering targeted messages to consumers at the right time through the digital...
Selective distribution systems refer to a type of distribution system in which suppliers commit to selling the contracted goods or services directly or indirectly to distributors selected based on specified criteria, while the distributors commit not to sell the said goods or services to unauthorized...
Fast-moving consumer goods is undoubtedly one of the sectors that the Competition Authority has been working most intensively since the COVID 19 pandemic. Among the most important developments of this period was the Sector Inquiry initiated on Fast Moving Consumer Goods (“FMCG”) Retailing...
In the decision of the Constitutional Court ("Constitutional Court" or "Court") dated 09.11.2022, numbered 2020/67 E. 2022/139 K. (the "Decision"), the annulment of certain articles of the Law Amending the Law on the Protection of Competition No. 4054 ("Law No. 7246") was requested...
In Turkish competition law, certain types of mergers and acquisitions are subject to Turkish Competition Board’s (“Board”) approval in order to gain legal validity. Pursuant to Article 7 of the Law No. 4054 on the Protection of Competition (“Law No. 4054”), the Board is competent to define mergers and acquisitions...
Recently, the Competition Board (the Board) had imposed administrative fines on banks and financial institutions for failing to respond to the request for information within the scope of a preliminary investigation.[i] The request for information that lays the groundwork for the administrative fine imposed by...
Amazon, a world-famous company, is an e-commerce company that operates the world’s largest online shopping platform. In the backstage, Amazon is a data-driven company whose retail decisions are mostly driven by automated systems, fueled by the relevant market data. That being said, Amazon has a dual...
The right to make on-site inspections is one of the Competition Board’s (“Board”) most important tools for revealing whether Law No. 4054 on the Protection of Competition (“Law No. 4054”) has been violated. The effective use of this authority is quite important in terms of obtaining fruitful results from...
“Harese” is an interesting Arabic word. There is a thorn that camels love very much in the desert. The camel eats the thorn with great greed. So much so that, its mouth bleeds as it eats, but it doesn't stop eating. The taste of the thorn is mixed with the salty taste of its own blood. This mixed taste drives the camel...
Turkey’s leading pay television service provider, Krea İçerik Hizmetleri ve Prodüksiyon A.Ş. (“Digiturk”), is frequently the subject of complaints made to the Competition Authority (“Authority”). In fact, the Competition Board (“Board”) issues a new decision about Digiturk almost every year. In these decisions...
The French Competition Authority (Autorité de la Concurrence), within the scope of the competition law proceeding initiated upon the complaint of Criteo SA (“Criteo”), accepted the commitments proposed by Meta Platforms Inc., Meta Platforms Ireland Ltd., and Facebook France...
While the scope of Competition Board’s (“Board”) power to conduct on-site inspections has increased with the introduction of Guidelines on Examination of Digital Data during On-site Inspections (“Guidelines”), nowadays the amount of monetary fines imposed on undertakings continue to...
The hub and spoke cartel, which is a relatively new type of violation in terms of Turkish competition law, is defined as the indirect exchange of information between two independent undertakings which are horizontal competitors on the supplier or retailer level, through another undertaking...
The settlement mechanism has only recently been introduced to Turkish competition law practice. It entered into force with the amendment made to the Law on the Protection of Competition (“Law”) numbered 4054 on 16.06.2020, and has been in effect for less than two years. In this relatively...
Due to their increasing share in the economy and rapid growth rate, e-marketplace platforms have come under the increasing scrutiny of the Turkish Competition Authority (“Authority”) as well as many competition authorities around the world...
Pursuant to the Amendment Communiqué Concerning the Mergers and Acquisitions Requiring the Competition Board’s Approval (“Amending Communiqué”) published in the Official Gazette dated March 4th, 2022 and numbered 31768, certain amendments have been introduced...
The Competition Board (“Board”) has recently published a reasoned decision in which it evaluated BSH Ev Aletleri Sanayi ve Ticaret A.Ş.’s (“BSH”) request for negative clearance or exemption with regard to its practice of prohibiting authorized dealers from making sales through online marketplaces...
Shahmaran, a Mesopotamian myth, is believed to take place in Tarsus. According to the myth, the shah of snakes is the immortal and omniscient "Shahmaran." Shahmaran is described as a beautiful woman living in her cave with her snakes...
During the COVID-19 pandemic, competitive concerns about the pricing behavior of chain markets, manufacturers, and wholesalers engaged in the retail trade of food and cleaning supplies led to an investigation by...
When the past decisions and the recent decisions of the Competition Board (“Board”) are examined, a significant increase can be observed in the number of decisions where the Board found hindrance or obstruction of on-site inspections. This situation shows that...
The European Commission began investigating the collusive behavior of Credit Suisse, UBS, Barclays, RBS, and HSBC in the Foreign Exchange (forex) spot trading market in 2019. With the recent press release dated 02.12.2021, the Commission announced that the case is now closed...
Digitalization, in particular, necessitates the rewriting of competition law rules. Competition law is at the center all questions regarding e-commerce and digital platforms. The aforementioned platforms, which have become prominent due to innovations in...