*Av. Yakup ERİKEL, Av. Sibel ÖZTÜRK, LL.M.
General Remarks
Form is one of the main elements of an administrative act. It refers to the way in which the administration expresses its decision and to the procedure followed when adopting that decision.[1] In this sense, “form” also covers the procedural steps used to adopt an administrative act.[2]
When adopting an administrative act, the administration must follow the required procedures and rules. This helps the administration act in an orderly, objective, and reliable way[3] and provides transparency and protection for persons affected by administrative action.[4] The form element is important because it shows that the act exists, which authority adopted it, and which procedure was followed.[5]
Türkiye does not yet have a general administrative procedure act. Therefore, the rules on the form and procedure of administrative acts are found in different laws, decrees, and regulations. Some rules have also been developed through judicial decisions.[6]
The main rules on form and procedure include the written form requirement and, where applicable, the duty to give reasons; preparatory steps such as proposals, consultations, and opinions; compliance with meeting and decision quorums and deliberation rules for decisions taken by boards; and, where required, obtaining the opinion and defence of the party concerned.[7]
Although there is no general law regulating the procedure for adopting administrative acts, the general principle is that administrative acts must be in writing. Article 40 of the Constitution requires the State to indicate the available legal remedies, the competent authorities, and the applicable time limits in its acts. Therefore, these points must be stated in individual administrative acts. In addition, Article 125(3) of the Constitution provides that the time limit for bringing an action against an administrative act starts from the date of written notification. This also confirms the written form requirement.[8]
As for the duty to give reasons, Article 141(3) of the Constitution requires all judicial decisions to be reasoned. There is no similar general rule for administrative acts. Therefore, administrative acts do not, as a general rule, have to include reasons.[9] However, giving reasons is useful because it requires the administration to state the factual and legal grounds for its decision and helps the persons concerned assess and challenge the legality of the act.[10] For this reason, in our view, a future administrative procedure law should include a general duty to give reasons for administrative acts.
As a general rule, the administration does not have to obtain the opinion or defence of the party concerned before adopting an administrative act. However, if the law requires such an opinion or defence, this requirement must be followed. Where a defence must be obtained, the subject of the defence must be clearly explained to the party concerned and enough time must be given to respond. Otherwise, the rights of defence are violated and the decision becomes procedurally unlawful.[11]
In the case-law of the Council of State, breaches of form and procedural rules are examined by distinguishing between material (essential) defects of form and non-material (ancillary) defects of form. Essential defects may make an administrative act invalid. Treating every breach of form or procedure as a reason for invalidity could lead to results that are too strict and not suitable for the circumstances of the case.[12]
For example, a decision adopted without holding a meeting or without meeting the required meeting or decision quorum is considered to breach an essential form requirement. In contrast, a defect that does not affect the result of the decision is treated as an ancillary defect and does not make the decision invalid. Essential defects cannot later be corrected in a way that makes the original decision valid. Ancillary defects, however, may be corrected later, and the decision may still be treated as having been adopted on its original date.[13]
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Administrative Procedure for Administrative Fines under Law No. 4054 on the Protection of Competition
Part Four of Law No. 4054 on the Protection of Competition (“Law No. 4054”), titled “Procedure in the Board’s Examinations and Investigations”, sets out detailed rules on the form and procedure used to establish infringements of competition law. In this respect, Law No. 4054 works as a special administrative procedure law.[14] The procedure under the Law consists of the stages of preliminary inquiry, investigation, oral hearing, and final decision.[15]
Under Article 40 of Law No. 4054, the Competition Board may act ex officio or upon an application. It may decide to open an investigation directly or to conduct a preliminary inquiry to determine whether an investigation is necessary. If a preliminary inquiry is opened, the rapporteur must submit the information obtained, the evidence, and their opinion to the Board in writing within 30 days.
Article 41 provides that the Board must examine the information obtained and decide whether to open an investigation within 10 days after the preliminary inquiry report is submitted.
A second paragraph was added to Article 41 by Law No. 7246 on 24 June 2020. Under this provision, based on criteria such as market share and turnover, the Board may decide not to investigate agreements, concerted practices, and decisions or practices of associations of undertakings that do not restrict competition to a significant extent - except for hard-core restrictions such as price fixing, market or customer sharing, or restrictions on supply between competitors. This amendment introduced the de minimis principle into Turkish competition law.
If the Competition Board considers a notification or complaint concerning an infringement of competition law to be serious and sufficient, it informs the applicant in writing and states that an investigation has been opened. If the Board does not consider the notification or complaint to be serious, it may reject it expressly. It is also deemed rejected if the Board does not respond within 60 days.
Articles 43 to 47, titled “Opening of Investigations, Commitments and Settlement”, set out the procedure to be followed after the Board decides to open an investigation. These provisions cover matters such as collecting evidence, informing the parties, notifications, written responses, and the oral hearing. Article 48 regulates the final decision.
Once the Board decides to open an investigation, the investigation begins and must normally be completed within six months. If necessary, the investigation period may be extended once for a further period that does not exceed the original period.
The decision to open an investigation is notified to the parties within 15 days from the date of the decision. The parties are then asked to submit their first written defences within 30 days. However, this period does not begin until the Board gives the parties enough information about the type and nature of the allegations.
During the investigation, a team of rapporteurs appointed and authorised by the Board may request information under Article 14 and conduct on-site inspections under Article 15. The evidence obtained through these powers is assessed and an investigation report is prepared. The report is served on both the Board and the parties, and the investigation stage is then completed.
After the investigation report is served, the parties submit their second written defences within 30 days. The investigation team then prepares an additional written opinion within 15 days and sends it to all Board members and the parties. The parties may submit their third written defences within 30 days after receiving the additional opinion. Following the 2020 amendment introduced by Law No. 7246, these periods may be extended once, if there are justified reasons, for a further period that does not exceed the original period.
After the third written defences are submitted, an oral hearing may be held if the parties request it in their petitions or if the Board decides to hold one ex officio. The oral hearing must be held no earlier than 30 days and no later than 60 days after the end of the investigation stage. The parties must be invited at least 30 days before the hearing date.
Article 47 of Law No. 4054 sets out the rules for the oral hearing, while Article 48 regulates the final decision. After an oral hearing, the Board gives its final decision on the same day. If this is not possible, it gives the final decision together with its reasons within 15 days. If no oral hearing is held, the final decision is given within 30 days after the end of the investigation stage. If an oral hearing has been scheduled but the parties concerned do not attend, the Board decides the case within one week after the scheduled hearing date by examining the file. Oral hearings are public, while Board decisions are, as a rule, adopted after closed deliberations.
Article 52(1) of Law No. 4054 lists the matters that must be included in Competition Board decisions. These include: “the names and surnames of the Board members rendering the decision and the names and surnames of those conducting the examination and investigation”; the names or titles, addresses, and identifying details of the parties; a summary of the parties’ allegations; a summary of the economic and legal issues examined; the rapporteur’s opinion; the assessment of the evidence and defences; the reasons and legal basis for the decision; the operative part; and, where applicable, dissenting opinions. Article 52(2) also requires the duties imposed on the parties and the rights granted to them to be written clearly and without doubt or ambiguity.
In conclusion, Law No. 4054 contains detailed procedural rules for competition law investigations. When the Competition Board imposes an administrative fine, it must comply with the applicable requirements on written form, reasons, meeting and decision quorums, deliberation procedures, and the rights of defence. It must also indicate the available legal remedies and time limits and comply with the principle of parallelism in form and procedure. A decision adopted without following these requirements may be unlawful in terms of the form element.[16]
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References
[1] GÜNDAY, M. (2013). İdare Hukuku. 10th ed., Ankara, p. 144. Gözler/Kaplan treat “form” and “procedure” as two separate elements: GÖZLER/KAPLAN, p. 304.
[2] ZABUNOĞLU, Y. K. (2012). İdare Hukuku–I. Vol. 1, Ankara, p. 334.
[3] GÜNDÜZ, H. (2014). Rekabet Hukukunda Uygulanan İdari Para Cezaları. Competition Authority Graduate Thesis Series No: 21, 1st ed., Ankara, p. 16.
[4] GÜNDAY 2013, p. 143.
[5] KANGAL, Z. T. (2011). Kabahatler Hukuku. On İki Levha, 1st ed., Istanbul, p. 264.
[6] GÜNDAY 2013, p. 144.
[7] GÜNDAY 2013, pp. 144–147.
[8] YILDIRIM, T., YASİN, M., KAMAN, N., ÖZDEMİR, H. E., ÜSTÜN, G., OKAY TEKİNSOY, Ö. (2018). İdare Hukuku. Ed. Prof. Dr. Turan YILDIRIM, updated 7th ed., On İki Levha, Istanbul, pp. 324–325.
[9] GÜNDAY 2013, p. 145.
[10] YILDIRIM/YASİN/KAMAN/ÖZDEMİR/ÜSTÜN/OKAY TEKİNSOY 2018, pp. 379–380.
[11] GÜNDAY 2013, p. 148.
[12] ZABUNOĞLU 2012, p. 347.
[13] GÜNDAY 2013, pp. 149–150.
[14] Council of State (Danıştay) 13th Chamber, 14.03.2006, E.2005/86, K.2006/1413.
[15] KOÇ, E. (2012). “4054 Sayılı Rekabetin Korunması Hakkında Kanun’da Düzenlenen İdari Para Cezaları İçin Öngörülen İdari Usul”. TBB Dergisi 2012 (98), p. 231.
[16] YILDIRIM/YASİN/KAMAN/ÖZDEMİR/ÜSTÜN/OKAY TEKİNSOY 2018, pp. 379–382.
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