*Sibel ÖZTÜRK, LL.M.
The Law No. 4054 on the Protection of Competition may be able to achieve its purpose of establishing and protecting the competitive environment in the markets of goods and services through the existence of a deterrent, fair and proportionate sanctions system. In case of violation of the competition order, various sanctions are applied by the Turkish Competition Board in order to prevent the repetition of the violation and to eliminate the possibility of a similar violation, and administrative fines are the leading ones. [1]
Administrative fines, which are among the sanctions in the field of public law and constitute one of the most effective tools in the implementation of competition policy and deterrence, are regulated in Articles 16 and 17 of the Law on the Protection of Competition No. 4054.[1] It is possible to examine the administrative fines regulated in Law No. 4054 within the framework of a dual distinction in terms of "subject" and "quality".
Within the framework of this distinction, administrative fines in terms of their subjects; (i) administrative fines imposed for violation of substantive provisions and (ii) administrative fines imposed in case of violation of procedural provisions. The administrative fines imposed in case of violation of the provisions on the merits are stipulated in the third and fourth paragraphs of Article 16 of the Law No. 4054. The administrative fines imposed in case of violation of procedural provisions are regulated in the first paragraph of Article 16 and Article 17 of the Law.
Administrative fines stipulated in the third paragraph of Article 16 of Law No. 4054 and foreseen to be applied for substantive violations; are penalties imposed on undertakings, undertaking associations or members of such associations in cases of "carrying out agreements, decisions and concerted actions restricting competition", "abuse of the dominant position", "carrying out a merger or acquisition that creates a dominant situation or is intended to strengthen their existing dominant position".
Another provision regarding the administrative fines foreseen to be applied in return for substantive violations is regulated in the fourth paragraph of Article 16 of the Law No. 4054. According to the provision, in the event that administrative fines imposed on the undertaking or undertaking associations for the violations on the merits stipulated in the third paragraph are imposed; An administrative fine shall be imposed on the managers or employees of the undertaking or undertaking association whose decisive effect is determined in the violation.
Administrative fines regulated in the first paragraph of Article 16 of Law No. 4054 and foreseen to be applied for procedural violations; "Providing false or misleading information or documents in the exemption and negative determination applications made to the Competition Authority and in the permit applications foreseen for mergers and acquisitions", "Carrying out mergers and acquisitions subject to permission without the permission of the Competition Board", "Providing incomplete, incorrect or misleading information or documents in case of requesting information from the undertakings or during the on-site examinations carried out at the undertakings regarding the files in operation before the Authority, or providing information or failure to provide the document within the specified period of time or at all" and "obstruction/complication of on-site inspection", in the event that; These are the penalties imposed on real and legal persons who are in the nature of undertakings and on the undertaking associations or the members of these unions.
Without prejudice to the penalties set forth in Article 17 of Law No. 4054 and specified in the first paragraph of Article 16, the administrative fines foreseen to be applied in return for procedural violations are penalties imposed in the following cases: to undertakings and undertaking associations; penalties imposed in cases of "non-compliance with the obligations imposed by the Board or the commitments made by the undertakings by the final decision or temporary injunction", "obstruction/difficulty of the on-site examination carried out within the undertaking" and "failure to provide the requested information or document within the specified period in the application of Articles 14 and 15 of the Law".
After this distinction made in terms of their subjects, it is possible to subject administrative fines in nature to a double distinction between (i) administrative fines applied instantly and (ii) administrative fines applied for a period. In the case of instant administrative fines, the main purpose is deterrence and punishment. These penalties are applied with the occurrence of a certain behavior and end up being applied. The administrative fines stipulated in the first, third and fourth paragraphs of Article 16 of the Law No. 4054 are of this nature. Because, in these provisions, it is stipulated that if the reasons specified in the Law are realized, the violators will be given an administrative fine at the rates determined as shown in the Law.
On the other hand, administrative fines imposed for a period of time; are fines imposed "in case of non-fulfillment of decisions requiring the undertakings to act in a certain way" or "in case of violation of certain articles of the Law", which are not complied with and continue to be applied for each day of the violation. Administrative fines regulated in Article 17 of Law No. 4054 titled "Proportional Administrative Fine" are of this nature. Because, in the cases stipulated in Article 17 of the Law, an administrative fine shall be imposed for each day of the violation in accordance with the administrative fines regulated in the first paragraph of Article 16 and applied instantly in respect of procedural violations.
In line with these explanations, the administrative fines issued under the Law on the Protection of Competition No. 4054 and stipulated in Articles 16 and 17 of the Law can be stated as follows: (i) The fines stipulated in the first paragraph of Article 16 of the Law No. 4054 are applied in case of violation of the procedural provisions and instantly, (ii) the administrative fines in the third and fourth paragraphs of Article 16 of the Law, In case of violation of the provisions on the merits, they shall be applied instantly, and (iii) the administrative fines regulated in Article 17 of the Law shall be applied for a period of time in case of violation of the procedural provisions.
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[1] OZTURK, Sibel; “Rekabetin Korunması Hakkında Kanun Kapsamında Uygulanan İdari Para Cezaları”, Yetkin, Ankara 2022.
[2] Law No. 4054 on the Protection of Competition.
Türkçe 