*Sibel ÖZTÜRK, LL.M.
In Article 14 of the Law on the Protection of Competition No. 4054 titled "Request for Information", it is stipulated that the Competition Board may request all kinds of information it deems necessary from all public institutions, undertakings and undertaking associations while fulfilling the duties assigned to it by this Law. In the second paragraph of the article, it is regulated that all these authorities and the officials of the undertakings and undertaking associations from which information is requested by the Board are obliged to provide this information requested by the Board within the period to be determined by the Board.[1]
Article 15 of Law No. 4054, titled "On-site Inspection", stipulates that the Competition Board may conduct inspections at undertakings and undertaking associations, if it deems necessary in the performance of its duties assigned to it by this Law; for this purpose, it may inspect the books, all kinds of data and documents of undertakings or undertaking associations in physical and electronic media and information systems, take copies and physical samples thereof, request oral or written explanations regarding certain matters, and conduct on-site inspections regarding all kinds of assets of undertakings.
In the application of Articles 14 and 15 of the Law; The provision of incomplete, false or misleading information or documents or the failure to provide the information and document within the specified period or not at all constitutes the reason for the administrative fine to be established by the Board in accordance with the first paragraph c of the first paragraph of Article 16 of the Law No. 4054.
In the Competition Board's recent Lotte Chemical decision[2], the responses submitted by Lotte Chemical Corporation to the Authority regarding the activities of the Liaison Office of Lotte Chemical Corporation Turkey (Istanbul) were evaluated within the scope of false/misleading information within the scope of subparagraph (c) of the first paragraph of Article 16 of Law No. 4054 and it was decided to impose an administrative fine on the undertaking in question.
As stated in the said decision; In the complaint application transferred to the records of the institution, it is stated that:
*Lotte Chemical Corporation's sales and marketing activities in the Turkish market are carried out by Lotte Chemical Corporation Turkey (Istanbul) Liaison Office,
* Lotte Chemical Corporation Turkey Istanbul Liaison Office continued the activities of Lotte Chemical Corporation from 2015 to mid-March 2022, although the liaison offices are essentially temporary legal entities with tax exemptions that should not mediate in the sales and marketing activities of the parent company as required by the legal basis,
* The sales and marketing activities carried out by this liaison office were determined in the audits carried out by the Ministry of Industry and Technology in September-October 2021 and the Ministry decided to cancel the operating permit of the Liaison Office of Lotte Chemical Corporation Turkey (Istanbul),
*On the other hand, within the scope of the preliminary examination carried out by the Authority, it was stated that Lotte Chemical Corporation was requested to provide information about the activities and market shares of the liaison office, but in the reply letter from the party, it was stated that the liaison office did not carry out any sales activities and provided false/misleading information.
As a result of the investigations carried out by the Board, it was understood from the invoices of the company submitted in the complaint application that Lotte Chemical Istanbul made sales and as a result of the audits carried out by the Ministry, this situation was determined and it was decided to cancel the activity permit of the liaison office with the decision of the Ministry.
As such, the Board has concluded that the statements of the Lotte Chemical Corporation Turkey (Istanbul) Liaison Office in its reply letters and in the notification form that it does not make any sales in one file and that it makes sales in another file but makes sales through legal entities should be considered within the scope of false and misleading information.
On the other hand, it should be noted that in paragraph c of paragraph 1 of Article 17 of the Law on the Protection of Competition No. 4054, it is stipulated that the Competition Board will impose an administrative fine for each day in the application of Articles 14 and 15 of the Law to the undertakings and undertaking associations, provided that the penalties specified in the first paragraph of Article 16 are reserved, if the requested information or document is not provided within the specified period. The administrative fines imposed in Article 17 of Law No. 4054 and applied for each day calculated as proportionate and delayed in complying with the decision are aimed at ensuring that the decisions of the Board are complied with as soon as possible and Article 17 of Law No. 4054 clearly states that "... Without prejudice to the penalties referred to in the first paragraph of Article 16..." Since the expression is used, the administrative fines stipulated in Articles 16 and 17 of the Law can be applied in relation to the same action.[3]
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[1] OZTURK, S. (2022); “Rekabetin Korunması Hakkında Kanun Kapsamında Uygulanan İdari Para Cezaları”, Yetkin, Ankara, p. 61.
[2] Turkish Competition Board’s decision dated June 30, 2022 and numbered 22-29/470-189.
[3] OZTURK, p. 63.
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