In the Official Gazette dated July 15, 2021, the “Regulation on the Reconciliation Procedure to be Applied in Investigations Regarding the Agreement Restricting Competition, Concerted Actions and Decisions and Abuse of Dominant Position” was published and entered into force.
As stated in Article 1 of the Regulation, the purpose of this regulation is to regulate the procedures and principles regarding the reconciliation process that can be applied in accordance with Article 43 of the Competition Law to undertakings or associations of undertakings against whom investigations have been initiated regarding prohibited behaviors in Articles 4 and 6 of the Law on the Protection of Competition.
What Are The Stages Of The Reconciliation Process?
1) Initiation of the Reconciliation Process
According to Article 4 of the Regulation, the Competition Board may initiate the settlement procedure upon the written request of the parties to the investigation or ex officio after the investigation has started. According to Article 5 of the Regulation, if the Competition Board initiates the reconciliation process ex officio, it invites the parties to the reconciliation negotiations. The parties to the investigation shall notify the Competition Authority in writing whether they want to start reconciliation negotiations within 15 days from the notification of this invitation.
2) Settlement Negotiations
If the Competition Board accepts the request of the parties to the investigation and the parties to the investigation accept the invitation sent by the Competition Board in due time, the Competition Authority initiates reconciliation negotiations with the relevant parties as soon as possible.
The commencement of conciliation negotiations does not mean that the conciliation parties have accepted the alleged violation. Conciliation parties may withdraw from the conciliation process until the presentation of the conciliation text.
According to paragraph 5 of article 6 of this regulation, on the condition that the security of the investigation is not endangered in the conciliation negotiations, it is ensured that the conciliation party obtains information on the following matters and the conciliation parties express their views on these matters:
• The content of the allegations made about the conciliation party,
• The nature and extent of the alleged violation,
• The main evidence that forms the basis of the alleged violation against the party, provided that it is limited to informing the settlement party about the nature and extent of the alleged violation and is free from trade secrets and confidential information,
• The discount rate that can be applied in case the process ends with a settlement,
• The range of administrative fines that can be imposed on the settlement party.
3) Settlement Interim Decision
According to article 7 of the regulation, the Competition Board makes an interim decision regarding the process after the reconciliation negotiations are completed. The matters included in this interim decision are as follows:
• The nature and extent of the alleged violation,
• Maximum administrative fine rate calculated within the scope of the Penalty Code,
• The discount rate to be applied as a result of the settlement procedure,
• If applicable, the discount rate to be applied within the scope of the Active Cooperation Regulation,
• The maximum administrative fine rate and amount to be imposed,
• The definite period not exceeding fifteen days to be given for sending the reconciliation text to the Competition Authority,
• In case the reconciliation text is not sent in due time, the Competition Board will not be bound by the issues included in the interim decision.
The parties to the conciliation cannot make the matters included in the conciliation interim decision the subject of negotiation.
4) Reconciliation Text
According to article 8 of the regulation, if the mediation party accepts the issues stated in the mediation decision, it submits a mediation text containing the following elements:
• A clear statement by the conciliation party that it acknowledges the existence and extent of the violation,
• The maximum rate and amount of administrative fine that the Board may impose on the settlement party for violation, and that the party accepts this penalty rate and amount within the framework of the settlement procedure,
• The conciliation party is adequately informed about the allegations against it and sufficient opportunity is given to the party to convey its views and explanations,
• That the administrative fine and the matters in the text of the reconciliation cannot be the subject of a lawsuit by the reconciliation party.
It is essential that the text of the reconciliation is signed by the persons authorized to represent the reconciliation party and presented in writing. However, the statement containing the above elements can also be presented orally. In this case, after the given statement is put in writing by the assigned professional personnel, it is confirmed by the persons authorized to represent the reconciliation party.
If there are deficiencies in the submitted reconciliation text, the Competition Board notifies the parties that these deficiencies should be corrected for once, within 7 days, otherwise, paragraph 1 of Article 11 of the Regulation will be applied.
The reconciliation text duly submitted cannot be withdrawn.
5) Settlement Final Decision
Pursuant to Article 9 of the Regulation, the investigation is terminated in terms of the relevant party with a final decision by the Competition Board, which includes a violation detection and administrative fine, within 15 days from the entry of the reconciliation text into the records of the Competition Authority.
Can This Regulation Be Applied To Ongoing Investigations?
Pursuant to Provisional Article 1 of the Regulation, the provisions of this Regulation are also applicable to investigations initiated before its entry into force but for which the investigation report has not been notified.