Accordingly, the ”maximum fine” that may be imposed on the undertaking will be 10% of the Undertaking’s Turkish turnover generated by the end of the relevant financial year explained above. Foregoing figure is the ”upper limit of the fine” that may be imposed on the Undertaking. Under the Competition Law, the Board is authorized to determine the administrative fine between 0% and 10% at its sole discretion. Despite this general provision under the Competition Law, the Regulation on Monetary Fines for Restrictive Agreements, Concerted Practices, Decisions and Abuses of Dominance (the “Regulation on Fines“) groups the violation types under two different titles (i) “cartels” and (ii) “other violations”. According to the Regulation on Fines, following steps should be taken to determine the fine to be imposed on the company: (i) first, the ”base fine” must be calculated on a rate between 2% and 4% for cartels and a rate between 0.5% and 3% for other violations over the company’s turnover in the financial year preceding the date of the decision (if it is not possible to calculate the company’s turnover generated by the end of the financial year preceding the date of decision, the turnover generated by the end of the financial year closest to the date of the decision will be taken into consideration); and then (ii) aggravating and mitigating factors specified under the Regulation on Fines must be factored in respectively in order to determine the fine to be imposed on.
When determining the administrative fine the Authority will also take into consideration some other issues such as duration of infringement, market power of company, the company’s decisive influence in the realization of infringement, compliance with the commitments, cooperation and the amount of actual or potential damage in the relevant market (aggravating/mitigating factors).
Aggravating factors are: repetition; continuation after the notification; negligence in meeting commitments; hindrance of the investigation; or coercion of other undertakings to join the infringement. Under the Regulation on Fines, the fines will be increased by 50% for infringements that have continued for more than a year, and by 100% for infringements that have lasted longer than five years.
Mitigating factors are: active cooperation in the scope of the investigation; abetting by public authorities or coercion by other parties; voluntary compensation of the victims; cessation of other infringements; or low share of the commercial activities that are subject to infringements in the gross turnover. Under the Regulation on Fines, the fines will be reduced by 1/6, 1/4 or 3/5 where applicable.
As explained below, the Competition Law states that in the event of ‘active cooperation with the Authority for purposes of revealing contrariness to provisions of Competition Law’, fines mentioned above may not be imposed or reductions may be made in administrative fines specified above taking into consideration the quality, efficiency and timing of cooperation and by means of demonstrating its grounds explicitly.
In addition to the monetary sanction, the Board is authorized to take all necessary measures to terminate the restrictive agreement, to remove all de facto and legal consequences of every action that has been taken unlawfully, and to take all other necessary measures in order to restore the level of competition and status as before the infringement.
Furthermore, such a restrictive agreement shall be deemed as invalid and unenforceable with all its legal consequences. Similarly, the Competition Law authorizes the Board to take interim measures until the final resolution on the matter, in case there is a possibility for serious and irreparable damages.
The sanctions that can be imposed under the Competition Law are administrative in nature. The Competition Law does not lead to any criminal sanction.
[1] There are also few other decisions in which the Board calculated the fine to be imposed on the infringer by taking into consideration the total annual gross revenue.
[2] The Authority has released Draft Regulation on Administrative Monetary Fines for Infringement of the Law on the Protection of Competition (“Draft Regulation“). In contrary to the existing regulation under the Competition Law with respect to determination of the fine based on the total turnover of the company, the Draft Regulation provides that “the turnover generated in the relevant market, which is directly or indirectly, related to the respective competition law infringement“ should be taken into account