Turkish Competition Board Issues Draft Commitment Mechanism Communique

The latest amendment to the Law on Protection of Competition No. 4054 has introduced a brand-new commitment mechanism designed to eradicate competition law violations arising from the abuse of dominance and restrictive agreements without the need to complete ongoing pre-investigation and investigation procedures. Accordingly, during a pre-investigation or investigation, parties can offer commitments voluntarily to the Turkish Competition Board (“the Board”). If the Board finds the commitments sufficient to eliminate its competition concerns, it can choose not to launch an investigation, or to end an ongoing investigation before its completion without an administrative fine. This mechanism aims to save time, reduce costs and prevent anti-competitive damages from increasing.

In order to regulate the commitment mechanism in detail, the Turkish Competition Authority issued a draft communique named the “Communique on commitments offered during pre-investigation and investigation producers regarding restrictive agreements and concerted practices, and abuse of dominance” ("draft communique") published on its website on November 28, 2020 for public review (Available in Turkish only).

While the draft communique provides rules on submission, evaluation, nature, termination, tracking and fulfillment of the commitments in a detailed manner, the most important provisions of the draft communique are explained below.

. Deadline for submitting a request: The commitment procedure begins with a written request from an undertaking. During the investigation stage, undertakings must submit their requests within three months of receiving an investigation notice.

. The Board’s initiative for commencing the commitment procedure: The second step of the commitment mechanism entails the Authority beginning a meetings process with the concerned undertakings. However, the communique grants the Board the authority  to postpone the meeting process if more research is required in order to determine competition concerns in a clear and detailed manner.

. Rules for the nature of commitments: Commitments must be submitted in writing and clear. Undertakings are not allowed to submit alternative commitments. Depending on the nature of competition concerns, both structural and behavioral commitments can be submitted.

. Evaluation of commitments: The Board will evaluate (i) whether the agreements, decisions, or behavior of undertakings result in the violation of competition law (ii) whether the commitments eliminate competition law concerns. At the end of its evaluation, the Board will either (i) find the commitments sufficient, decide to make them binding and end any ongoing investigation or pre-investigation (ii) decide to take the opinions of complainants and third parties (iii) decide to allow undertakings to make amendments to their commitments in respect of the Board’s decision (iv) decide to end the commitment procedure and carry on the investigation.

. Complainant and third party’ opinions: According to the draft communique, the Board can decide to receive and evaluate opinions from complainants and third parties regarding commitments. In this case, the Board must send or publish online the commitment text as well as its competition law concerns within 10 days following its decision. Complaints and third parties must send their opinions in writing within the period determined by the Board.

Both individuals or corporations can send their opinions or evaluations about the draft communique to duzenleme@rekabet.gov.tr e-mail address until December 28, 2020.

Further explanation in detail will be made after the publication of the communique. Please contact Ali Ilıcak for more information.