Antitrust law (or competition law)

Antitrust law (or competition law)

Article 1- The purpose of this Law is to prevent agreements, decisions and practices that prevent, distort or restrict competition in the markets of goods and services, and to prevent the abuse of their dominance by the undertakings that dominate the market, and to ensure the protection of competition by making the necessary regulations and inspections.

Scope

Article 2 operating in the Republic of Turkey within the limits of the goods and services market or the market affect any undertakings, including his anti-competitive, disruptive and restrictive agreements, the undertakings which dominate the market with the practices and decisions of abuse of dominance and competition will significantly mergers and reduce All kinds of legal transactions and behaviors in the nature of acquisitions, measures, determination, regulation and supervision for the protection of competition are covered by this Law.

Definitions

Article 3- In the implementation of this Law;

Ministry: (Amended phrase: 16.06.2020-7246 / 14. Art.) 1 Ministry of Trade,

Competition: The race that enables free economic decisions to be made between undertakings in the goods and services markets,
Dominant Position: The power of one or more undertakings in a certain market to act independently of their competitors and customers and to determine economic parameters such as price, supply, production and distribution amount,
Enterprise: Real and legal persons who produce, market, sell goods or services in the market, and units that can make independent decisions and form an economic whole,

Association of Undertakings: All kinds of associations with or without a legal personality formed by undertakings to achieve certain objectives,

Goods: Any movable and immovable property subject to trade,

Service: Physical, intellectual or combined activities performed in return for a price or benefit,
Authority: Competition Authority,

Board: Competition Board,

Expresses.

SECOND PART

FIRST PART

Prohibited Activities

Agreement Restricting Competition, Concerted Actions and Decisions

Article 4- Agreements between undertakings, concerted actions and decisions and actions of undertakings associations that have the purpose of preventing, distorting or restricting competition directly or indirectly in a particular market of goods or services, or that have or may cause this effect, are illegal and prohibited.

These cases are, in particular:

a) Determining the purchase or sale price of goods or services, factors such as cost, profit, and all kinds of purchase or sale conditions,

b) The distribution of markets for goods or services and the sharing or control of all kinds of market resources or elements,
c) Control of the supply or demand amount of the goods or services or their determination outside the market,
d) Difficulty or restriction of the activities of competitor undertakings, or the exclusion of the undertakings operating in the market through boycott or other behavior, or the prevention of new entrants to the market,
e) Except for the exclusive franchise, applying different conditions to persons with equal status for equal rights, obligations and actions,
f) Requiring the purchase of a good or service together with other goods or services contrary to the nature of the agreement or commercial practices, or requiring the purchase of a good or service demanded by the purchasers in the status of an intermediary undertaking to condition the display by the buyer of another good or service or supply Putting forward the conditions for the re-supply of a purchased good or service,

In cases where the existence of an agreement cannot be proven, the fact that the price changes in the market or the balance of supply and demand or the operating regions of the undertakings are similar to those in the markets where competition is prevented, distorted or restricted constitutes the presumption that the undertakings are in concerted action.

Provided that it is based on economic and rational facts, each of the parties can be relieved of responsibility by proving that they do not take concerted action.

Exemption

Article 5- (Amended paragraph: 16.06.2020-7246 / 1. Art.) 2 In case all of the following conditions are met, decisions of agreements between undertakings, concerted actions and associations of undertakings are exempted from the application of the provisions of Article 4:

a) Ensuring new developments and improvements or economic or technical development in the production or distribution of goods and the provision of services,

b) The consumer benefits from this,

c) Competition is not eliminated in a significant part of the relevant market,

d) Competition is not restricted more than necessary in order to achieve the objectives in subparagraphs (a) and (b).

(Supplementary clause: 16.06.2020-7246 / 1. Md) The relevant undertakings or associations of undertakings may apply to the Authority in order to determine by the Board that the agreement, concerted action or the decision of the association of undertakings within the scope of Article 4 meet the exemption conditions.

(Amended clause: 02.07.2005-5388 / 1. Art.) 3 Exemption may be granted for a certain period of time, or the granting of exemption may be linked to the fulfillment of certain conditions and / or certain obligations. Exemption decisions are valid from the date of the agreement or concerted action, or the decision of the association of undertakings, or the fulfillment of the condition, if a condition is made.

In the event that the conditions indicated in the first paragraph are fulfilled, the Board may issue communiqués that provide exemption for certain types of agreements as a group and indicate their conditions.

Abuse of Dominant Position

Article 6- It is illegal and prohibited for one or more undertakings to abuse their dominant position in the market of goods or services in the whole or part of the country, either alone or through agreements or joint behaviors with others.

Examples of abuse are in particular:

a) Actions aimed at directly or indirectly preventing another undertaking from entering the commercial activity field or making the activities of competitors difficult in the market,

b) To discriminate directly or indirectly by putting forward different conditions for equal and equal rights, obligations and actions to the equal buyers,

c) The purchase of other goods or services together with a good or service, or if a good or service requested by the buyers in the case of intermediary undertakings is conditional on the display by the buyer, or repetition, such as if a purchased good is not sold below a certain price. imposing restrictions on terms of purchase and sale in the event of sale,

d) Actions aimed at distorting the conditions of competition in another market of goods or services by taking advantage of the financial, technological and commercial advantages created by the dominance in a particular market,

e) Restriction of production, marketing or technical development to the detriment of the consumer.

Merger or Acquisition

Article 7- (Amended clause: 16.06.2020-7246 / 2. Art.) 4 Effective competition in the market of any goods or services in the whole or part of the country, primarily creating a dominant position or strengthening an existing dominant position, of one or more undertakings the merger that will result in a significant reduction or the acquisition of any enterprise or person's assets or partnership shares of another enterprise, or all or part of the partnership shares, or the means that give him the right to have a right in management, except for inheritance, is illegal and prohibited .

The Board announces with the communiqués which types of mergers and acquisitions require permission by notifying the Board in order to gain legal validity.

SECOND PART

Powers of the Board

Negative Detection

Article 8- Upon the application of the relevant undertaking or associations of undertakings, the Board may issue a negative clearance document showing that an agreement, decision, action or merger and acquisition is not contrary to Articles 4, 6 and 7 of this Law.

After the issuance of this document, the Board may always return from its opinion within the framework of the conditions in Article 13. However, in this case, no penal sanctions are imposed on the parties for the period until the change of opinion by the Board.

Ending the Violation

Article 9- (Amended paragraph: 16.06.2020-7246 / 3. Art.) 5 Board; If a notice, complaint or request of the Ministry or ex officio detects that there has been a violation of Articles 4, 6 or 7 of this Law, the relevant undertaking or associations of undertakings should act or be avoided in order to establish competition and certain activities of the undertakings or their shares of partnership or It notifies structural measures in the form of transfer of assets in its final decision. Behavioral and structural measures should be proportionate to the violation and necessary for effective termination of the violation. Structural measures are applied only in cases where the behavioral measures previously introduced do not yield results. If it is determined by the final decision that the behavioral measures have not yielded results, at least 6 months are given to the undertaking or associations of undertakings to comply with the structural measure.

Natural and legal persons who have a legitimate interest can file a complaint.

Before taking a decision in accordance with the first paragraph, the Board notifies the relevant undertakings or associations of undertakings in writing about how they will end the violation.

In cases where serious and irreparable damages are likely to occur until the final decision, the Board may take temporary measures to protect the situation before the violation and not exceed the scope of the final decision.

(...) 6 Notification of Mergers and Acquisitions to the Board

Article 10- (Abrogated first paragraph: 02.07.2005-5388 / 2. Art.) 7

As of the date of notification of the merger or acquisition agreements within the scope of Article 7 to the Board, if the Board decides to permit the merger or acquisition transaction as a result of the preliminary examination to be made within fifteen days or to take this transaction for final examination, the merger or acquisition transaction with a letter stating its preliminary objection It has to duly notify the concerned parties that it is pending until the final decision and that it cannot be implemented, along with other measures it deems necessary. In this case, the provisions of articles 40 to 59 of this Law are applied.

In cases where the Board does not respond to the application regarding the merger or acquisition or does not take any action within the period, the merger or acquisition agreements enter into force 30 days after the notification date and become legally valid.

Not Notification of Merger and Acquisition to the Board

Article 11- In cases where the merger and acquisition transaction that must be notified has not been notified to the Board, the Board automatically reviews the merger or acquisition when it becomes aware of the transaction. As a result of the examination;

a) If it decides that the merger or acquisition does not fall within the scope of the first paragraph of Article 7, it allows the merger or acquisition, but imposes a fine for not notifying the concerned parties.
b) If it decides that the merger or acquisition falls within the scope of the first paragraph of Article 7; termination of the merger or acquisition transaction, together with a fine; the elimination of all acts committed unlawfully; The return of any shares or assets seized by the Board, if possible, to their former owners, if this is not possible, their assignment and transfer to third parties; decides that the transferee cannot participate in the management of the undertakings acquired in any way until they are transferred to the former owner or to third parties and that other measures deemed necessary shall be taken.

Notification

Article 12- The notification contains the complete and complete information requested by the Notification Forms to be prepared by the Board. The notification can be made by any party. The notifier is obliged to inform the other relevant party of the situation. The relevant documents are attached to the notification and the notification is deemed to have been made on the date it is received in the Board records.

Revocation of Exemption and Negative Clearance Decisions

Article 13- In the following cases, exemption and negative clearance decisions may be withdrawn or certain actions of the parties may be prohibited:
a) There is a change in any event that constitutes the basis for the decision,

b) Failure to fulfill the conditions or obligations determined,

c) The decision was made based on incorrect or incomplete information about the agreement in question.

The withdrawal decision is valid from the date of the amendment in subparagraph (a), in other cases from the date of the exemption or negative clearance decision.

In the event that the mistakes and deficiencies specified in subparagraph (c) are realized through fraud or intent of the relevant undertaking, the decision shall be deemed not taken at all.

Request Information

Article 14- While fulfilling the duties assigned by this Law, the Board may request any information it deems necessary from all public institutions and organizations, enterprises and enterprise associations.

Officials of these authorities, undertakings and associations of undertakings are obliged to provide the requested information within the period to be determined by the Board.

On-Site Inspection

Article 15- The Board, when it deems necessary while fulfilling the duties assigned by this Law, may make examinations in undertakings and associations of enterprises. For this purpose, undertakings or associations of undertakings:

a) (Amended clause: 16.06.2020-7246 / 4. Md) 8 Examine its books, all kinds of data and documents kept in physical and electronic media and information systems, and take copies and physical samples of these,

b) Request a written or oral explanation on certain issues,

c) It may conduct on-site inspections regarding all kinds of assets of the undertakings.

The examination is carried out by experts working under the command of the Board. Experts keep with them a certificate of authorization indicating the subject and purpose of the examination and that an administrative fine will be imposed in case of false information.

(Additional clause: 01.08.2003-4971 / 25. Md) The relevant persons are obliged to submit the copies of the requested information, documents, books and other means. In place

In case the examination is obstructed or there is a possibility to prevent it, an on-site examination is made with the decision of the criminal judge of peace.

THIRD PART

Administrative Fines

Administrative Fine

Article 16 - (Amended article: 23.01.2008-5728 / 472. Art.) 9 The Board shall inform the real and legal persons and associations of enterprises or their members;

a) Providing false or misleading information or documents in applications for exemption and negative clearance and permit applications for mergers and acquisitions,

b) Realization of mergers and acquisitions subject to authorization without the permission of the Board,

c) Providing incomplete, inaccurate or misleading information or document or not submitting the information or document within the specified period or at all in the implementation of Articles 14 and 15 of the Law,

d) Prevention or complication of on-site inspection,

For those specified in subparagraphs (a), (b) and (c), undertakings and associations of undertakings, or members of these unions, which are formed at the end of the previous fiscal year or if it is not possible to calculate this decision, the annual non-compliant It imposes an administrative fine at the rate of one thousandth of its net income and at the rate of five thousandth of its gross income to be determined in the same way for those specified in clause (d). However, the penalty to be determined on this basis cannot be less than ten thousand Turkish Liras. According to subparagraph (b) of this paragraph, administrative fines are given to each of the parties in merger transactions, and only to the transferee in takeover transactions.

Conducting the on-site inspection by a court decision does not prevent the implementation of the administrative fines stipulated in this Law regarding the prevention and complication of on-site inspection.

Those who act prohibited in Articles 4, 6 and 7 of this Law, the undertakings to be punished, associations of undertakings or members of these unions, formed at the end of the previous fiscal year before the final decision or, if it is not possible to calculate it, at the end of the fiscal year closest to the date of the final decision and to be determined by the Board. An administrative fine of up to ten percent of their annual gross income is imposed.

In the event that administrative fines specified in the third paragraph are imposed on the enterprise or association of undertakings, an administrative fine of up to five percent of the penalty imposed on the enterprise or association of undertakings shall be imposed on the directors or employees of the enterprise or association of enterprises determined to have a determining effect in the violation.

While the Board decides on the administrative fines according to the third paragraph, within the context of the second paragraph of Article 17 of the Law on Misdemeanors dated 30/3/2005 and numbered 5326, the recurrence of the violation, its duration, the power of the undertaking or associations of undertakings in the market, the determinant effect of the violation, the compliance with the commitments given. takes into account matters such as whether it helps the examination, the weight of the damage that has occurred or is likely to occur.

In order to reveal the violation of the law, the enterprises or associations of undertakings or their managers and employees who actively cooperate with the Authority may not be given the penalties specified in the third and fourth paragraphs, taking into account the nature, efficiency and timing of the cooperation and clearly indicating the reason, or a reduction may be made in the penalties to be imposed according to these paragraphs. .

The matters taken into consideration in the determination of the administrative fines to be imposed according to this article, the conditions for exemption or reduction from the fines in cooperation, the procedures and principles regarding the cooperation shall be determined by the regulations to be issued by the Board.

Relative Administrative Fine

Article 17- (Amended article: 23.01.2008-5728 / 473. Art.) 10 The Board, undertakings and associations of undertakings, without prejudice to the penalties specified in the first paragraph of Article 16,

a) Failure to comply with the obligations or commitments made by the final decision or interim injunction,

b) Prevention or complication of on-site inspection,

c) Failure to submit the requested information or document within the specified period in the implementation of Articles 14 and 15 of the Law,
administrative money at the rate of five per ten thousand of the annual gross income to be determined by the Board, which is formed at the end of the previous fiscal year before the decision, if it is not possible to calculate it, and which will be determined at the end of the fiscal year closest to the date of the decision. gives the penalty.

Administrative fines according to subparagraphs (a) and (c) of the first paragraph may be imposed as of the expiry of the period determined in order to comply with the obligations in the decisions specified in these paragraphs. The administrative fine related to the act in sub-clause (a) may be imposed as of the day following the notification of this decision, if no time has been determined in the decision imposed on the obligation. An administrative fine related to the acts mentioned in subparagraph (b) can be imposed as of the day following the day the act took place.

The Nature and Application of Fines Imposed According to this Law

Article 18- (Repealed: 23.01.2008-5728 / 578. Art.) 11

Prescription of Fines and Temporary Fines

Article 19- (Repealed: 23.1.2008-5728 / 578. Art.) 12

THIRD PART

Organization

Competition Authority

Article 20- A Competition Authority with administrative and financial autonomy as a public legal entity has been established in order to ensure the establishment and development of the goods and services markets in a free and healthy competition environment, to observe the implementation of this Law and to fulfill the duties assigned by the Law.

The Ministry to which the institution is related (Amended phrase: 16.06.2020-7246 / 14. Art) 13 is the Ministry of Commerce.

The institution is independent while performing its duty. No organ, authority, authority or person can give orders or instructions in order to affect the final decision of the Institution.

The headquarters of the institution is in Ankara.

Organization of the Competition Authority

Article 21- Organization of the institution;

a) Competition Board,

b) Presidency,
c) Service Units,

Occurs.

FIRST PART

Competition committee

Organization of the Board

Article 22- (Amended article: 02.07.2018-Decree Law-703/167. Art.) 14 The Competition Board is the decision-making body of the Authority and consists of a total of seven members appointed by the President, one being the Chairman and the Deputy Chairman.

Conditions of Appointment

Article 23- (Amended article: 02.07.2018-Decree-703/167. Art.) 15 Members of the Board, having at least four years of higher education, shall be entitled to the 1, 4, 5, 6 and paragraphs of paragraph (A) of Article 48 of the Civil Servants Law No. 657. They are selected from among those who meet the conditions specified in clauses 7.

Term of Office

Article 24- (Repealed sentences one to four: 02.07.2018-Decree-703/167. Art.) 16 (…) If the Presidency and memberships are vacated for any reason, except for renewal, election and appointment to the vacant places within one month makes. In this case, the appointed person completes the term of the person he is appointed to.

The Board Chairman and members cannot be dismissed for any reason before the term expires. However, with the decision of the Board, the duties of the Chairman and members of the Board, whose appointment is found to be contrary to Article 25 of this Law, or whose status is found to be in violation of Article 25 of this Law, or who have committed a crime related to the duty assigned by the Law, shall be terminated by the decision of the court.

Prohibitions

Article 25- The Chairman and members of the Board cannot take any official or private duty, engage in business, or have a share in partnerships, unless it is based on a special law.

The Chairman and members of the Board are obliged to sell or transfer all kinds of securities in the meaning of the capital market legislation other than the debt securities issued by the Treasury to those other than third degree blood and up to the second degree affinity relatives. Members who do not comply with this provision within 30 days are deemed to have withdrawn from membership.

Duties and non-profit cooperative partnerships in associations and foundations whose aim is towards social aid and education are excluded from this provision.

Board members and staff cannot disclose confidential information about the Authority and the commercial secrets of undertakings and associations of undertakings that they learned during the implementation of this Law, even if they leave their duties, and cannot use it for their own or others' interests.

Oath

Article 26- The members of the Competition Board take an oath in the presence of the First Presidency Council of the Court of Cassation that they will carry out the work of the Board with full attention and honesty, and will not or will not act in violation of the provisions of the Law.

The application made for an oath is deemed to be among the urgent works by the Supreme Court. The Chairman and members of the Board cannot take office unless they take an oath.