Amendments to the competition law no 4054

On 3 May 2024, a draft Law on Amendments to the Turkish Commercial Code No 6102 and Certain Other Laws was presented to the Presidency of the Turkish Grand National Assembly. On 23 May 2024, it was accepted by the General Assembly of the Turkish Grand National Assembly and become law as Law No 7511 on the Amendment of the Turkish Commercial Code and Certain Laws (the “Law No 7511”). The new law also regulates the competition law and amended Articles 34, 43 and 45 of Law No 4054 on the Protection of Competition (the “Law”).The amendments entered into force on 29 May 2024 with the publication of Law No 7511 in the Official Gazette.

EMPOWERING THE COMPETITION BOARD TO DETERMINE THE STATUS OF THE COMPETITION AUTHORITY PERSONNEL

The third paragraph of Article 34 of the Law was annulled by the Constitutional Court decision dated 9 November 2022 and numbered 2020/67 E., K:2022/139. With Law No 7511, the Competition Board (the “Board”) has been authorised to determine the status of the personnel of the Competition Authority (the “Authority”). Thus, the discretion of the Board to change positions, titles and degrees has been clarified, thereby filling the gap resulting from the annulled provision by the Constitutional Court’s revocation decision.

AMENDMENTS IN INVESTIGATION PROCEDURE

To understand the procedural changes, it is necessary to briefly mention the procedure that the Board had to follow to issue its final decision within the scope of investigations before Law No 7511 entered into force. The investigation committee operating within the Authority had to prepare an investigation notification, an investigation report and an additional written opinion; and the undertaking subject to the investigation had to submit written defences in response to these documents, namely the first, second and third written defence. Subsequently, a final decision is rendered following an oral defence before the Board.

• Abolishment of the Right to Present a First Written Defence

With the amendment of Article 43(1) of the Law, the undertaking under investigation no longer has the right to submit its first written defence within 30 days following the notification of the investigation. The rationale for the legislative proposal notes that the notification of an investigation indicates a suspicion of a violation, rather than an allegation, so does not impair the right of the undertaking under investigation to a defence. In this sense, it appears that the aim is to accelerate the investigation process in line with the principle of procedural economy.

• No Additional Written Opinion to be Prepared if There is No Change in the Investigation Committee’s Opinion

Under Article 45(2) of the Law, the Authority is obliged to prepare and respond with an additional written opinion within 15 days of the undertaking under investigation submitting a defence against the investigation report.

This obligation has been abolished by the amendment. In this respect, if the defences do not lead to a change in the opinions of the investigation committee presented in its investigation report, the committee will not prepare an additional written opinion.

• Revocation of the Right to Request an of Extension of Time

The amendment has abolished the possibility for the parties to request an extension of time for their defences to be submitted regarding the additional opinion. The investigation committee has 15 days to prepare an additional written opinion and the undertaking has up to 30 days in which to submit a defence to the additional written opinion, but cannot request a time extension.

CONCLUSION

In principle, the procedural changes introduced by Law No 7511 aim to shorten the investigation process. However, although the amendments serve to ensure procedural economy, it means that undertakings will only have one opportunity to submit a written defence and only after the notification of the investigation report during the investigation period. Nevertheless, apart from a written defence, under Article 44 of the Law, undertakings have the right to submit any information and evidence that may affect the decision to the Board at any time. The extent to which the amendments will expedite the investigation processes will become clear in practice.