10: Gönenç Gürkaynak from Turkey
A key competition law development in Turkey in 2020: After rounds of revisions and failed attempts of enactment over a span of several years, the proposal for an amendment to the Law No. 4054 on Protection of Competition (“Law No. 4054”) has finally been approved and Law No. 7246 on Amendments Concerning Law No. 4054 (“Amendment Law”) entered into force on June 24, 2020.
The amendment law essentially (i) clarifies certain mechanisms in Law No. 4054 which might have led to legal uncertainty in practice to a certain extent, and (ii) introduces new mechanisms as to the selection of cases for the Turkish Competition Authority (“Authority”) to focus on, a new substantive test for merger control, behavioral and structural remedies for anti-competitive conduct and procedural tools enabling the Board to end its proceedings in certain cases without going the whole nine yards when the parties opt for commitments or settlement. The most prominent changes introduced by the Amendment Law are briefly provided below:
- De minimis: The Amendment Law refers to “turnover” and “market share” thresholds for the de minimis exception but leaves the setting of the threshold to the Board. The draft Communiqué on “Agreements, Concerted Practices, and Decisions and Practices of Associations of Undertakings which are Considered not to Appreciably Restrict Competition” has been recently opened to public opinion.
- SIEC Test: In line with the EU law, the amendment replaces the current dominance test with the “significant impediment of effective competition” (SIEC) test. The EU adopted the same test in order to catch gap cases, since creating a dominant position will not be deemed as a precondition for blocking mergers and acquisitions in SIEC.
- Behavioral and Structural Remedies for Anti-Competitive Conduct: This amendment is in line with the EC Regulation No. 1/2003 on the implementation of the rules in case of competition law infringements (Recital 12 and Article 7.1), but takes a step further to provide assurance to the companies that structural remedies for competition law infringements will only be applied when behavioral remedies have first been tried but proved to be ineffective.
- Settlement and Commitment: The commitment and settlement procedures are closely modelled with the EU law. While the secondary legislation has not been enacted yet, the amendment is already in force as evident from the fact that in November 2020 the Authority announced that it has terminated an investigation (24.07.2020, 20-35/460-M) based on commitments for the first time.
- On Site Inspection Process: The amendment included only a clarification of the current practice by confirming that the Authority can inspect and make copies of all information and documents in companies physical records as well as those in electronic space and IT systems during on-site inspections. On this subject, the Authority recently published the “Guidelines of the Turkish Competition Authority on Examination of Digital Data during On-site Inspections”.
- Self-Assessment Procedure: Relevant amendments aim to provide legal certainty as to the individualexemption regime by clarifying that the “self-assessment” principle applies to agreements (as well as concerted practices and decisions of associations of undertakings) that may potentially restrict competition.
- Time extension for the Authority’s Additional Opinion in Investigations: The Amendment Law includes an option to double the time period for the submission of the Authority’s additional opinion during an investigation.
A place to visit in Turkey after the pandemic: Despite the various measures taken against the COVID-19 pandemic which took hold of the world along with our country, my recommendation for better and COVID-19 free days would be visiting Göbeklitepe, situated in the province of Şanlıurfa in southeastern Turkey. Noted for its history of 12,000 years, Göbeklitepe rewrote human history and it is recognized as the world’s oldest cult center ever discovered by UNESCO in 2018.
Mr Gönenç Gürkaynak, LL.M. (Harvard) is a founding partner and heads the competition law and regulatory department of ELIG Gürkaynak Attorneys-at-Law, a leading law firm based in Istanbul, Turkey. He holds teaching positions at undergraduate and graduate levels at two universitites and gives lectures in other universities in Turkey.