Competition Law has emerged in order to ensure the efficient functioning of the market, to prevent monopolization and to ensure the development of competition in the market by removing the preventions to economic freedom. These issues are tried to be protected in our country with the Law No. 4054 on the Protection of Competition today. On 16 June 2020, the Law Proposal for the Amendment of the Law on the Protection of Competition was accepted and enacted in the parliament.
While the concepts such as commitment and reconciliation are introduced into the Competition Law with this amendment, it is tried to clarify the “self-evaluation” method for the violation of competition and the effects of the mergers and acquisitions are tried to be evaluated in a more reliable way by implementing the significant reduction in competition test. The lawmaker has stated that there are amendments in the proposal in line with EU legislation. (By clearly stating the authority regarding the implementation of the structural measures in the European Union legislation, the Competition Board is going to have an important tool in terms of effectively combating with competition violations and the scope of the on-site review authority is being further clarified).
The enacted proposal caused criticism after it took its final form. One of these criticisms, and even the most important, is the claim of giving powers that violate the right of property to the Competition Board. This claim, which we can come across in the counter statement of the proposal of the law while the proposal is being evaluated by the experts in press organs is the following provisions which is stated under the 3rd article of the proposal and which changes the Article 9 of the Law No. 4054 on the Protection of Competition:
‘‘…If the Board finds that there are violations of Article 4, 6 or 7 of the Law, shall notify the behaviors that should be actualized or avoided for the establishment of competition or the structural measures of undertakings to transfer their partnership shares or assets in their final decision.”
In response to these allegations, it has been stated that the regulations on the issue of structural measures are regulated in accordance with the Article 7 of the Regulation (1/2003) of the European Commission and has been added to the same statement that these structural may be implemented in the absence of behavioral measures with equivalent effectiveness on the same article or if the behavioral measures put more burden on the relevant enterprises. Moreover, Birol Köse, the chairman of the Competition Board has stated that there is no contradiction with the Right of Property which is the Article 35 of the Constitution, that the behavioral measures related to the elimination of violations are applied as a result of the investigation initiated upon determinations or complaints, that these procedures may take one and a half year and the examination to be made upon the complaint or determination of behavioral measures may take three and a half to four years, that violations can be resolved within this period, that six months will be given at the end of the final decision to remedy violations, that it is not possible to perform any violations against the right of property at the end of this process which takes about five years, that if contradictions and violations are not eliminated, administrative fines may be imposed at the rate of %0.05 of the daily turnover.
The Article 7 of the Regulation mentioned (1/2003) of the European Commission mentioned is as follows:
Determination and Elimination of the Violation
1. Where the Commission, acting upon complaint or ex-officio, finds that there is a violation of Article 81 or Article 82 of the Treaty, it may decide on relevant enterprises and associations of enterprises ending such violation. For this purpose, it may impose on them any behavioral or structural measures which are proportionate to the violation committed and necessary to effectively bring the violation to an end. Structural measures can only be imposed either where there are no equally effective behavioral measures or where any equally effective behavioral measure would be more burdensome for the relevant enterprise compared to the structural enterprise. If the Commission has a legitimate interest in doing so, it may also find that a violation has been committed in the past.
2. Those entitled to make a complaint for the purposes of paragraph 1 are natural or legal persons who can show a legitimate interest and Member States.
Currently, the claim that the Competition Board has been given an authority which may violate the right of property is a serious comment made as based on the context of the Law, but it has not gone beyond being a reasonable concern. In this context, all the members of the Board being appointed by the President and having topical provisions on the right of property in the powers given to this Board will cause domestic and foreign investors to worry. The proposal has also been criticized in terms of the protection of personal data, uncertainties that may arise in the case of judiciary remedies and the definite time for the decisions to be made for the applications to the Board. It is also mentioned in the criticism that there is no such structural measures in any EU country.
REFERENCES
https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32003R0001&from=en
https://ec.europa.eu/dgs/competition/economist/merger_control_test.pdf
https://www.tbmm.gov.tr/sirasayi/donem27/yil01/ss215.pdf
https://www.mevzuat.gov.tr/mevzuat?MevzuatNo=4054&MevzuatTur=1&MevzuatTertip=5