Business Law

THE COMPETITION BOARD’S APPLICATION OF SETTLEMENT PROCEDURE

The mechanism of settlement, which is frequently used since the year 2008 by European Commission authorities in Competition Law, came into force with the amendment of Article 43 entitled “Initiation of Investigation, Commitment and Settlement” of the Law on the Protection of Competition numbered 4054 (“Law”) on 16.06.2020. Within the scope of this practice introduced in the competition law legislation, the Board may initiate the settlement procedure and decide to terminate the investigation, upon the request of the relevant parties or ex officio, taking into account the procedural benefits arising from the rapid completion of the investigation process and the differences of opinion regarding the existence or scope of the violation.

Boundaries and application areas are determined by the Regulation on the Settlement Procedure for Investigations on Anticompetitive Agreements, Concerted Practices, Decisions and Abuse of Dominant Position, (“Regulation”) published in the Official Gazette dated 15.07.2021. Within the scope of reconciliation, the Board may decide to terminate the investigation in terms of the undertakings in question and to reduce the administrative fine by 10% to 25%, upon the submission of the reconciliation text, which includes that the undertakings under investigation have accepted the existence and scope of the violation and other relevant issues. The undertakings, whose investigations were terminated with settlement, can no longer bring the administrative fines and the issues included in the settlement text into the subject of lawsuits any more.

In accordance with the general principles of the settlement, the Competition Board (“Board”) may apply to the settlement procedure upon the written requests of the parties or ex officio. Settlement applications can also be made through the e-Government Gateway, and the Board and the parties are in charge until the notification of the investigation report.

After the settlement application, the Board

• Number of parties involved in the investigation
• Whether a significant part of the parties to the investigation resorted to settlement,
• The scope of the violation and the nature of the evidence,
• Whether it is possible to reach a common opinion with the investigative parties regarding the existence and scope of the violation.
It may accept or reject the request, as well as decide to invite other parties to settlement negotiations.
In case the Board accepts the written request submitted by the parties, settlement negotiations are started and an interlocutory decree is made as a result of the negotiations, which includes clues regarding the final decision.

In this interlocutory decree;

• The nature and extent of the alleged violation of Competition Law,
• Calculated maximum administrative fine rate,
• The discount rate to be applied as a result of the settlement,
• Discount rates that can be applied within the scope of active cooperation,
• Maximum penalty rates to be given,
• The definite period not exceeding fifteen days to be given for sending the settlement text to the Institution, and
• In case the settlement text is not sent in due time, the Board will not be bound by the matters included in the interlocutory decree.

Following the Board’s interlocutory decree, the parties are required to send the text of the settlement to the Board, in due time, which includes the declarations of their acceptance of the existence and scope of the violation. After the parties send the settlement texts to the Board in due time, the final decision phase is initiated within fifteen days from the date of entry into the Board’s records.
It is anticipated that the administrative fine to be imposed can be reduced by 10% to 25% and that the matters subject to settlement will not be the subject of lawsuits under the terms of the “Regulation on Fines to Apply in Cases of Agreements, Concerted Practices and Decisions Limiting Competition, and Abuse of Dominant Position.”

CONCLUSION
In light of all of this information and the Board’s settlement decisions made since the year 2020, it is seen that: Settlement is a mechanism that concludes quickly, increasing its applicability and preference both in terms of undertakings with numerous specific findings against it and in terms of the Board.

Fatmanur Ayışık

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