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1 ELİG Attorneys at Law ICN Plenary V: Case resolution methods and factors for effectively choosing them Gönenç Gürkaynak, LL.M., Esq.

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Presentation on theme: "1 ELİG Attorneys at Law ICN Plenary V: Case resolution methods and factors for effectively choosing them Gönenç Gürkaynak, LL.M., Esq."— Presentation transcript:

1 1 ELİG Attorneys at Law ICN Plenary V: Case resolution methods and factors for effectively choosing them Gönenç Gürkaynak, LL.M., Esq.

2 2 No specific case resolution mechanism Enforcement Regime in Turkey Administrative/Civil No Cartel Settlement System The Competition Board is required to launch at least a preliminary investigation into an allegation of violation – no possibility to close/settle a file without conducting a dawn raid. No specific case resolution methods in Turkey. The enforcement is marked by the handlings of the Turkish Competition Authority. The Turkish Competition Authority does not have a consistent practice in terms of cartel regulation and/or case resolutions. ELIG Attorneys at Law

3 3 No specific case resolution mechanism (continued) The Turkish Competition Authority may choose one of the following actions. The defendants are not able to select in between: 1. The Turkish Competition Authority may launch a preliminary investigation and reject/drop the case without taking any further action (e.g. Airlines decision). 2. The Competition Authority may launch a preliminary investigation and order certain structural and/or behavioral remedies; but to refrain from launching a full- fledged investigation (e.g. Private teaching institutions decision). ELIG Attorneys at Law

4 4 No specific case resolution mechanism (continued) 3. The Competition Authority may launch a full fledge investigation but order certain structural/behavioral remedies without a fine (e.g. Aegean cement decision). 4. The Competition Authority may launch a full fledge investigation, issue a fine but not order structural/behavioral remedies (e.g. Bank sector decision). 5.The Competition Authority may launch a full fledge investigation and order certain structural/behavioral remedies and issue a fine (e.g. Istanbul bread manufacturers decision). ELIG Attorneys at Law

5 5 Law No Article 9: Termination of Infringement If the Competition Board, upon informing, complaint or the request of the Ministry or at its own initiative, establishes that articles 4, 6 and 7 of Law No are infringed, it notifies the undertaking or associations of undertakings concerned of the decision encompassing those behavior to be fulfilled or avoided so as to establish competition and maintain the situation before infringement. Natural and legal persons who have a legitimate interest are entitled to file a complaint. The Board, prior to taking a decision, shall inform in writing the undertaking or associations of undertakings concerned of its opinions concerning how to terminate the infringement. Where serious and irreparable damages are likely until the final decision, the Board may take interim measures to maintain the situation as before the infringement. The interim measures cannot exceed the scope of the final decision. ELIG Attorneys at Law

6 6 The Competition Boards Position on Article 9 There are no clear signals in practice. The Competition Board does not have a consistent practice in applying Article 9. In some cases, the Article 9 option for corrective measures is not applied and the Competition Board proceeds directly with issuing a fine. The High State Courts Position on Article 9 The fact that the Competition Board applied Article 9 does not imply that an infringement has taken place. Article 9 does not have a binding effect. The Competition Boards Article 9 decisions are not executable. The incumbent cannot appeal the decision – it may ignore it and face an investigation, then the decision becomes appealable: Biletix Decision. ELIG Attorneys at Law

7 7 Case Resolution in Private Lawsuits Courts are reluctant to go into the merits. They await the Competition Boards decision on the substantive side. They do not discuss or question the contents of the Competition Boards decisions. 3M / Keskin Decision – The arbitral tribunal respected the Boards decision to use Article 9 instead of launching a fully-fledged investigation and refrained from going into the merits of the case under Law No ELIG Attorneys at Law

8 8 Case Resolution - Criminal Law Aspects Competition law violations with criminal dimensions (e.g. Bid-rigging) The Competition Board and the Criminal Enforcement Authorities: The Competition Board reverts to the public prosecutor: Siemens – Signalization Decision Medical Consumables Decision Banking Decision ELIG Attorneys at Law

9 9 THANK YOU ELIG Attorneys at Law


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