Legal AlertMatters to Know Regardıng The Regulation on Active Co-Operation For Discovery of Cartels (Leniency Regulation)!

3 May 2021

The Regulation on Active Co-Operation for Discovery of Cartels, (“Leniency Regulation“) has been published in the Official Gazette dated 15.02.2009 and numbered 21142. The purpose of the regulation is to regulate the procedures and principles regarding the prevention of the imposed fines specified in the Law No. 4054 on the Protection of Competition (“Law“), or the reduction of penalties to be imposed to the undertakings, and the directors and employees of the undertakings who are actively cooperating with the Competition Authority (“Authority“) in order to reveal the cartels prohibited by Law. The Regulation consists of two parts: the provisions regarding the Undertakings, and the Managers and the Employees. The procedures and principles regulated by the Regulation are as follows:

1- Prevention of imposing fines

In terms of undertakings:

The first undertaking to submit the information and documents specified in Leniency Regulation and fulfill the conditions, independently of its competitors, before the Competition Board (“Board”) decides to conduct a preliminary investigation, shall not be imposed fines.

In addition, while there is no evidence to conclude that the “Agreements between undertakings, concerted actions and such decisions and actions of associations of undertakings that have the purpose of preventing, distorting or restricting competition directly or indirectly in a particular market of goods or services, or that have or may cause this effect, are illegal and prohibited.” prohibition regulated in Article 4 of the Law has been violated, from the decision of the Board to make a preliminary investigation until the notification of the investigation report, the first undertaking to submit the information and documents determined, independently from its competitors and fulfill the conditions, shall not be imposed fines. This provision is only possible if the above-mentioned option is not used.

In addition, in order to benefit from the aforementioned provision, there shall be no application made by a manager or employee who submitted the specified information and documents and fulfilled the conditions.

In terms of Managers and Employees:

Before the Board decides to conduct a preliminary investigation, the first manager or employee who submitted the information and documents specified in the Leniency Regulation and fulfilled the conditions, independently of the undertakings that are parties to the cartel and the managers and employees of these enterprises, shall not be imposed fines. The applicability of this clause depends on the no undertaking to apply beforehand as mentioned above.

In addition, while there is no evidence to conclude that the matter regulated in Article 4 of the Law has been violated, from the decision of the Board to make a preliminary investigation to the notification of the investigation report, the first manager or employee to submit the information and documents determined, independently from the managers and employees of these enterprises and fulfill the conditions, shall not be imposed fines. This provision is only possible if the above-mentioned option is not used.

2- Reduction in fines

In terms of undertakings:

From the decision of the Board of preliminary investigation to the notification of the investigation report, the fines to be imposed on undertakings that present the information and documents determined, independently from their competitors and fulfill the conditions but fail to benefit from the regulation on non-penalty shall be reduced. In this case, the fines to be imposed on the executives and employees of the undertakings who accept the violation and actively cooperate shall also be reduced.

If the fines must be increased due to the prolongation of the violation and similar reasons as a result of the evidence presented, the undertaking presenting the relevant evidence first and the executives and employees of this undertaking who accept the violation and actively cooperate shall not be affected from this increase.

In terms of Managers and Employees:

From the decision of the Board of preliminary investigation to the notification of the investigation report, the fines to be imposed on the executives and employees who provide the specified information and documents, independently from the undertakings that are a party to the cartel and the managers and employees of these undertakings and who fulfill the conditions but cannot benefit from the regulation on non-penalty shall be reduced.

As a result of the evidence presented, if the fines need to be increased due to the prolongation of the violation and similar reasons, the manager or employee who presented the relevant evidence first shall not be affected by this increase.

3- Conditions

  • To present the information and documents regarding products affected by the cartel subject to application, the duration of the cartel, the names of the undertakings that are parties to the cartel, the dates and locations of the negotiations with the cartel,
  • Not to hide or eliminate the information and documents about the cartel subject to application,
  • Unless otherwise stated by the assigned unit on the grounds that it would make it difficult to uncover the cartel, cease to be a party to the cartel subject to application,
  • Keeping the application confidential until the notification of the investigation report, unless otherwise specified by the unit in charge,
  • To continue active cooperation until the final decision of the Board after the completion of the investigation.

You may reach the full Turkish version of the Regulation via the link below:

https://www.mevzuat.gov.tr/mevzuat?MevzuatNo=12873&MevzuatTur=7&MevzuatTertip=5