Commitment Mechanism in Turkish Competition Law

Article 43(3) of Law No. 4054 on the Protection of Competition (Law No. 4054) provides that the investigated undertakings may offer commitments with respect to potential competition concerns under Articles 4 and 6 of Law No. 4054 during the preliminary investigation and the fully-fledged investigation processes. The same provision specifies that naked and hard-core restrictions such as price fixing between competitors, region and customer allocation, or supply restriction do not fall within the scope of the commitment mechanism. As for the nature of the commitments, Article 9 of Communiqué No. 2021/2 on the Commitments to be Offered in Preliminary Inquiries and Investigations Concerning Agreements, Concerted Practices and Decisions Restricting Competition, and Abuse of Dominant Position (Communiqué No. 2021/2) stipulates that the parties may submit behavioural and/or structural commitments to the Authority. Article 5 of Communiqué No. 2021/2 provides that the investigated parties should first submit a request to offer commitments to the Turkish Competition Authority (Authority) in written form during the preliminary investigation or fully-fledged investigation phase, no later than three months following the service of the investigation notice. The Turkish Competition Board (Board) would then review the request to determine whether it qualifies for the commitment mechanism. The Board can either initiate the discussions with the parties or reject the proposed commitments and end the commitment procedure. If the Board finds that further examination is necessary in order to determine the competition law violation at the time of submission of the commitments, it can postpone the discussions with the parties.

In case the Board does not find that the commitment is appropriate, the Board can either ask the parties to amend their commitment for one time only or decide to discontinue the commitment procedure. The Board may also ask for the complainant’s and third parties’ opinions regarding the commitment as part of its review. In case the parties are required and willing to amend their commitments, the Board will continue the commitment discussions with the parties. In these discussions, the Board will explain its evaluations on the commitments and provide the parties with a copy of the confidential version of the third-party opinions, if any. If the Board decides that the proposed commitments can solve the competition concerns, it may render these commitments binding for the relevant undertakings and decide not to initiate an investigation or to terminate an ongoing investigation as per Article 44(3) of Law No. 4054. The Board will then monitor the commitments through the periodic reports to be submitted by the parties regularly, appointing third parties for audit purposes, or cooperating with professional associations or relevant institutions and organisations, or by other means.

For more information on commitments in Turkish competition law, please feel free to reach out to ELIG Gurkaynak at +90 212 327 1724 or through gonenc.gurkaynak@elig.com.