New development
Law No. 7511 on Amending the Turkish Commercial Code and Certain Other Laws (“Amending Law“), which was published in the Official Gazette dated 29 May 2024, brings 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. Before the Amending Law, Law No. 4054 envisioned (i) three investigation documents for the TCA’s case team to prepare for all cases (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 Amending Law brought significant changes to this procedure, as follows:
- Investigated undertakings not obliged to submit a First Written Defense: The former rule called on an investigated undertaking to submit its first written defense in response to the TCA’s investigation notice within 30 calendar days. The Amending Law removed this requirement. The ratio legis for this change, as explained in the scope of the Amending Law, is to expedite the investigation process with a view to securing procedural efficiencies. In this respect, the Amending Law notes that the investigation notice does not entail an infringement allegation (but rather alludes to a violation suspicion), and therefore it is not a document to which the investigated undertaking must necessarily respond from a right-to-defense perspective.
- The TCA to respond to the Second Written Defense only in case of a change in its previous assessments: Formerly, the TCA had to provide its responses to the defenses set out in an investigated undertaking’s second written defense by preparing an additional written opinion as a general rule. The Amending Law limited this necessity to cases where the undertaking’s defensive submissions lead to any change in the TCA’s case team’s previous assessments. The Amending Law again explains this change 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. Before, the law allowed both parties to ask for an extension by one-fold. The Amending Law has now removed this extension possibility, effectively curbing the legal period to prepare the relevant submissions.
Next steps and conclusion
The Amending Law brings noteworthy changes on the TCA’s infringement proceedings procedure. These changes do 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 newly introduced potential waiver 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 Amending Law envisions a lesser exercise of an undertaking’s right to defense.
