New development
Bill No. 2/2138, which the signatory parliamentarians submitted to the presidency of the Grand National Assembly of Turkey on Friday, 3 May 2024 and titled Bill on Amendments to the Turkish Commercial Code and Certain Laws (“Bill“), proposes certain noteworthy procedural changes to the Turkish Competition Authority’s (“TCA“) investigation proceedings.
For background, Law No. 4054 on the Protection of Competition (“Law No. 4054“) regulates the procedural steps for full-fledged investigations, which the TCA carries out. At present, Law No. 4054 envisions (i) three investigation documents for the TCA’s case team to prepare (i.e., investigation notice, investigation report and additional written opinion); (ii) three written defense submissions for the investigated undertaking to submit in response to these documents (i.e., first, second and third written defenses); and (iii) an oral hearing before the Turkish Competition Board (“TCB“), before the TCB renders its final decision on a full-fledged investigation.
Landmark strides
The Bill proposes significant changes to this procedure:
- Investigated undertakings not obliged to submit a First Written Defense: At present, Art. 43(2) calls on an investigated undertaking to submit its first written defense in response to the TCA’s investigation notice within 30 calendar days. The Bill proposes to remove this requirement. The ratio legis for this change, as explained in the Bill, is to expedite the investigation process with a view to securing procedural efficiencies. In this respect, the Bill notes that the investigation notice does not entail an infringement allegation (but rather alludes to a violation suspicion), to which the investigated undertaking must respond from a right to defense perspective.
- The TCA to respond to the Second Written Defense only in case a change of its previous assessments: Currently, the TCA has to provide its responses to the defenses set out in an investigated undertaking’s second written defense by preparing an additional written opinion, as per Art. 45(2) of Law No. 4054. The Bill proposes to limit this necessity to cases, where the undertaking’s submissions lead to any change in the TCA’s case team’s previous assessments. The Bill again explains this proposal with potential procedural efficiencies.
- Curbing the legal period to for the “third” round of submissions: Law No. 4054 allows 15 calendar days for the TCA to prepare its additional written opinion and the investigation undertaking 30 calendar days to file its third written defense. Further, the law allows both parties to ask for an extension by one-fold. The Bill seeks to remove this extension possibility, effectively curbing the legal period to prepare the relevant submissions.
Next steps and conclusion
In terms of next steps, the Grand National Assembly of Turkey’s relevant committees will discuss and comment on the Bill, after which, the General Assembly will debate on the matter.
Should the parliament pass this Bill into law, only time will tell to what extent the changes will affect the infringement proceedings’ procedure. At any rate, the proposed changes would not prevent an undertaking from responding to the claims and evidence in the TCA’s investigation notice as Art. 44(1) of Law No. 4054 allows the undertaking to make such submissions at any time while the investigation is ongoing. Further, if the TCA enforces the proposed amendment of the additional written opinion in a large number of cases (as a general practice method), this could effectively remove the third round of submissions. It can be anticipated that elimination of additional written opinion potentially decreases the level of dialectic argumentation and most importantly the visibility of the TCA’s reasoning behind rejecting the argumentation provided in the second written defense, thereby raising the question of whether the Bill envisions a lesser exercise of an undertaking’s right to defense.
