Confidentiality Requests in Turkish Competition Law

The protection of trade secrets is regulated under Communiqué No. 2010/3 on the Regulation of the Right of Access to the File and Protection of Trade Secrets (Communiqué No. 2010/3). Communiqué No. 2010/3 lists the conditions for information and documents to qualify as trade secrets under Law No. 4054 on the Protection of Competition (Law No. 4054) and sets the procedures and principles concerning the exercise of the right to confidentiality.

Article 12 of Communiqué No. 2010/3 defines a trade secret as any information and document relating to the field of activity of undertakings that undertakings wish to keep confidential, that is only known to and can be accessed by a certain and restricted group of persons, and that is likely to result in serious damage to the undertaking concerned when disclosed to third parties, especially competitors, and to the public. As per Article 2 of Communiqué No. 2010/3, the protection of trade secrets is applicable to all kinds of information and documents obtained by the Turkish Competition Authority (Authority) within the scope of Law No. 4054. Accordingly, confidentiality can be claimed for documents obtained during an on-site inspection as well as for all defences and response petitions submitted to the Authority within the scope of Law No. 4054.

According to Article 13 of Communiqué No. 2010/3, the burden of identifying whether the document submitted contains trade secrets and justifying such claim rests with the undertakings. The documents for which the undertakings do not make a confidentiality claim are deemed non-confidential. The undertakings that do not make a confidentiality assessment despite the Authority’s request cannot claim confidentiality at a later stage. In case the Authority accepts the confidentiality claims regarding the trade secrets, it shall refrain from disclosing them as per Article 15 of Communiqué No. 2010/3. The Authority is not authorised to disclose the confidential information to third parties, and any request from third parties to access the file is evaluated within the framework of general provisions. The Authority is also required to redact the confidential information in its reasoned decisions that are published on its website. On the other hand, the Authority is able to reject confidentiality requests for information and documents that are indispensable as evidence of infringement as per Article 15(2) of Communiqué 2010/3. In these cases, the Authority may disclose such information and documents that could be considered as trade secrets by taking into account the balance between public and private interest, in accordance with the principle of proportionality.

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