Formation of Effective System of
Anti-Cartel Activity : Turkish
Experience
Prof. Dr. Nurettin KALDIRIMCI
Acting President of the Turkish Competition Authority
BRIC International Competition Conference
August 31 – September 2, 2009
Kazan
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General Framework for Cartel Investigations
General prohibition in the Competition Act on anti-competitive agreements, concerted
practice and decisions limiting competition
The term ―agreement‖ and its scope
Examples of prohibited conduct
Price fixing
Market sharing
Controlling the amount of output
Boycotts against rivals
Preventing entry of new firms
Tying
Cartel as defined in Leniency Regulation and Regulation on Fines :
―agreements and/or concerted practices between competitors for fixing prices; allocation of customers,
providers, territories or trade channels; restricting the amount of supply or imposing quotas, and bid
rigging.‖
Cartels are treated as per se violation of the Competition Act
Exemption is unlikely
Concerted practice presumption
cement case (dated 19.10.2006, numbered 06-77/992-287)
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Powers
Power to conduct on-the-spot inspection at business premises
The power does not cover private residences of managers and employees
The Turkish Competition Authority can take a court order in case the
inspection is hindered or likely to be hindered
In the case of non—compliance, the Competition Act sets out turnover-
based fines not less than TL 11.200 (approximately € 5.200) and periodic
turnover-based fines per day
Power to request information
All public institutions and organizations, undertakings and associations of
undertakings are obliged to provide the requested information
In the case of non—compliance, the Competition Act sets out turnover-
based fines not less than TL 11.200 (approximately € 5.200) and periodic
turnover-based fines per day
New powers to come via amendment in the Competition Act
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Fines and other measures
Substantive fine on undertakings, associations of
undertakings and its members
Up to 10% of the turnover
The Competition Board considers factors such as the repetition of
infringement, its duration, market power of undertakings or
associations of undertakings, their decisive influence in the realization
of infringement, whether they comply with the commitments given,
whether they assist with the examination, and the severity of damage
that takes place or is likely to take place
Sample cases
the autoclaved aerated concrete decision (dated 30.5.2006 and
numbered 06-37/477-129 )
the refractory materials decision (dated 29.1.2007 and numbered
07-10/63-19)
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Fines and other measures
Fine on individuals who had a determining impact on the
violation
Up to 5% of the substantive fine imposed on undertakings or
associations of undertakings
Behavioural and structural measures, interim measures
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Regulation on Fines and Leniency Regulation
Regulations adopted in 2009
Regulation on Fines
Ensuring transparent, objective and consistent fining process
Promoting active cooperation by the parties subject to investigation
Imposing deterrent fines
Establishing principles, base fine, aggravating and mitigating factors
Base fine for cartels between 2% and 4 % of the turnover
Leniency Regulation
Full and partial, corporate and individual immunity
Reduction of fines
Ad hoc unit for leniency applications
Three applications since 15 February 2009
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An Important Challenge
Effectiveness of the tools concerning especially the capacity
in forensic IT
Training sessions for the professional staff to conduct
effective detection of information and documents stored in
especially computers
Amendment in the Competition Act is foreseen to enable
forensic IT experts to accompany the professional staff
during on-the-spot inspections
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Institutional Structure, Rights of the Parties & Experience
Turkish Competition Authority
independent in fulfilling its duties
financial and administrative autonomy
Competition Board
Decision-making organ
Technical Departments responsible for specific sectors
No separate cartel unit
Procedural fairness
Deadlines, right to access to file, right to defence, judicial review
Between 2000-2008, total amount of substantive fine imposed regarding
every kind of horizontal agreements (including but not limited to cartels)
is approximately TL 114.947.606 (€ 53.456.543)
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Thank you.
For more information see Anti-Cartel Template Turkey at:
http://www.rekabet.gov.tr/dosyalar/images/file/UluslararsiIliskiler/Turkey(1).pdf
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