The “Regulation on Active Cooperation for the Purpose of Uncovering Cartels” (”Regulation”) has been published in the Official Gazette dated December 16, 2023 and numbered 32401 and entered into force on the same day. Accordingly, the regulation published with the same title in the Official Gazette dated February 15, 2009 and numbered 27142 (“Previous Regulation“) has been abolished and replaced by the Regulation[1].

The Regulation does not have a different purpose than the Previous Regulation. In this context, the procedures and principles regarding the non-imposition or reduction of the fines specified in the Law on the Protection of Competition (“Law“) are regulated for undertakings that actively cooperate with the Competition Authority to uncover cartels prohibited by the Law, as well as for the managers and employees of the undertakings.

The Regulation differs from the Previous Regulation as it includes new definitions and introduces different conditions and procedures in the amount and conditions of the rebate.

New Definitions

Among the new regulations introduced by the Regulation is the definition of “Cartel Facilitator”, and a cartel facilitator, which refers to undertakings and associations of undertakings that facilitate the establishment and/or maintenance of a cartel through their activities, without operating at the same level of the production or distribution chain as the cartel parties, is subject to the same provisions and consequences as the cartel parties. The Regulation also stipulates, with the definition of “Documents with Added Value”, that the information and documents submitted for the reduction of fines under the Regulation must be among the information and documents that will strengthen the Board’s ability to prove the cartel, considering the evidence available to the Board.

Differences in the Amounts and Conditions of the Fines

Unlike the previous legislation which determines the applicable time period as being until the notification of the investigation report; the fines to be imposed on applicants who submit the relevant information and documents independently from other cartel parties and cartel facilitators within three months following the notification of the investigation[2] and who fulfil the conditions shall be reduced. Thus, cartel facilitators, like cartels, can also benefit from a rebate arrangement.  The current fine amounts are as follows:

  • The fine to be imposed on the first applicant shall be reduced in a range between twenty-five percent to fifty percent. In this case, the fine to be imposed on the managers and employees of the applicant who are in active cooperation shall also be reduced by not less than twenty-five percent or no such fine shall be imposed on these persons.
  • The fine to be imposed on the second applicant shall be reduced in a range between twenty to forty percent. In this case, the fine to be imposed on the managers and employees of the applicant who are in active cooperation shall also be reduced by not less than twenty percent or no such fine shall be imposed on these persons.
  • The fine to be imposed on other applicants are reduced in a range between fifteen percent to thirty percent. In this case, the fine to be imposed on the managers and employees of the applicant who are in active cooperation shall also be reduced by not less than fifteen percent or no such fine shall be imposed on these persons.

In order to be subject to a reduction in the fines, the information and documents to be submitted to the Competition Board must be in the nature of Documents with Added Value. The information and documents within the scope of the applications that are not accepted due to failure to fulfil this condition shall be removed from the file by the Competition Board and shall not be used as a basis for the final decision to be taken as a result of the investigation.

In order to evaluate the applicants who desire to benefit from the rebates, the Competition Board may, if necessary, ask for the written and/or oral information of the current managers and employees. In cases where it is deemed necessary to ask for the written and/or verbal information of former managers and employees, the applicant will be required to make maximum effort and prudence to ensure this.

In the case that additional information and documents are obtained by the applicant after the application for rebate, these information and documents shall be submitted to the records of the Board immediately and before the end of the time period applicable for the submission of the second written defence.

[1] With respect to the pending cooperation applications made before the enforcement of the Regulation, the provisions of the Previous Regulation regarding the conditions and procedure and the discount rates shall continue to be applied in favor of the applicant.

[2] The three-month period shall not apply to investigations initiated before the enforcement of this Regulation.

Bahar Ülgen Hasşerbetçi
Partner | [email protected]
Sevim Özkan
Associate | [email protected]