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Recent Developments in the Right of Access to Files

January 2019 - EU & Competition. Legal Developments by Erdem & Erdem Law Office.

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The parties of an investigation that is conducted in accordance with the Act on the Protection of Competition No. 4054 ("Competition Act") may enjoy the right to access the files concerning them that are drawn up by the Competition Authority ("Authority"). The procedures and principles related to use of this right are regulated via Communique on the Rules for Access to Files and the Protection of Trade Secrets No. 2010/3 ("Communiqu├ę"). For the parties, it is very important to exercise their right to access to files properly, since the relevant right has a direct correlation to their right to defense. Therefore, this article focuses on the discussions that may rise during the exercise of the right to access the files in light of the recent Competition Board ("Board") decisions...

Introduction

The parties of an investigation that is conducted in accordance with the Act on the Protection of Competition No. 4054 ("Competition Act") may enjoy the right to access the files concerning them that are drawn up by the Competition Authority ("Authority"). The procedures and principles related to use of this right are regulated via Communique on the Rules for Access to Files and the Protection of Trade Secrets No. 2010/3 ("Communiqu├ę"). For the parties, it is very important to exercise their right to access to files properly, since the relevant right has a direct correlation to their right to defense. Therefore, this article focuses on the discussions that may rise during the exercise of the right to access the files in light of the recent Competition Board ("Board") decisions. 

Legal Background

Article 44(2) of the Competition Act (Collecting Evidence and Informing the Parties) states that those parties that are notified of the initiation of an investigation against them may, until they have petitioned for the right to a hearing, request a copy of any documents drawn up within the Authority concerning them and, if possible, a copy of any evidence obtained in the matter. In addition, Article 44(3) sets forth that the Board may not base its decisions on issues about which the parties have not been informed and/or have been granted the right to defense. The relevant article indicates that providing the documents and information about the concerned parties is related to the right to defense. 

Moreover, the Communique regulates two subjects. Firstly, the procedures and principles related to the use of the right to access files.  Secondly, the determination of the trade secrets within the information discovered during the application of the Competition Act, and the procedures and principles related to the protection of information and documents classified as trade secrets. 

Right of Access to Files

According to the Communique, the parties may use their rights only once, if no new evidence is discovered during the investigation. The use of the right to access files comes with two exceptions: The Authority's internal correspondence, and the trade secrets and confidential information related to the other undertakings. Accordingly, the parties may have access to all kinds of evidence discovered and documents prepared concerning them within the Authority, except the Authority's internal correspondence and information and documents, including trade secrets and confidential information related to other undertakings, the association of undertakings and persons. 

The Authority's internal correspondence is defined as the correspondence between the units that fall under the actions to prepare for the Board decisions. Moreover, the Authority's internal correspondence is not entirely excluded from the scope of this right. Accordingly, the parties may examine the Authority's internal correspondence that has the quality of justifying or accusing evidence, and the documents submitted in the scope of the Regulation on Active Cooperation for Detecting Cartels (Active Cooperation/Leniency Regulation) ("Leniency Regulation") at the Authority's head office. 

Once the parties petition their requests to the Authority, the investigation committee evaluates the party's' requests to access files. If the committee decides that the request is not entirely, or partly appropriate, the Board will render a decision on the relevant request. The Board notifies the requesting parties of its reasoned decision. 

The Authority may apply different procedures while allowing parties access to the files. By considering the parties' relevant requests, the Authority may allow the parties to copy the files via photocopy, or it may provide them with electronic copies. On the other hand, the information provided within the scope of Article 6(3) and 9(3) of the Leniency Regulation, or the Authority's internal correspondence that justifies, or has the quality of accusing, the evidence shall be examined at the Authority's head office.

The Recent Practice

The recent Board decisions set forth that the method of using the right to access files has become a controversial topic. This is due to the efficient use of the relevant right has critical importance for the investigation parties, since efficient access to files affects the defense power of the parties' and, therefore, has the power to change the course of the investigations. 

The Board has evaluated a number of file access requests in the investigation concerning corporate loan markets.1 Accordingly, the Board has decided that the requesting parties may evaluate the documents obtained from private sector public persons ("Authority's internal correspondence") and the leniency request along with its annexes in the Authority's head office. The Board has not allowed the requesting parties to take any electronic versions or photocopies of the documents. It is also noted that the parties cannot take any records during the file access and, within that scope, they cannot bring any device/objects with them which may take record of the documents, such as telephones, recording machine, memory sticks, cameras or notebooks. 

The Board took a similar approach in a recently finalized investigation that was conducted in the flat glass market. In parallel with the banking investigation, the Board decided that the requesting party may evaluate the documents obtained from dealers ("Authority's internal correspondence") at the Authority's head office. The Board has not allowed the requesting party to take any electronic version or photocopies of the documents.2 

On the other hand, the Board has adopted a different approach in two recent investigations concerning the electricity market. In the Enerjisa decision, the correspondence between the Energy Market Regulatory ("EMRA") and the Authority has been classified as the Authority's internal correspondence, and it is opened to the party.3 Unlike the Board decisions explained, above, in the Enerjisa decision, the Board has allowed the evaluating parties to take notes during their file access. On the other hand, similar to the above-mentioned decisions, the Board has not permitted the parties to take any electronic versions or photocopies of the documents. The Board has adopted the same approach in the Akdeniz Elektrik decision.4

Comment

We observe that the Board decisions clarify the methods of using the right to access files. In recent investigations, it has been decided that the evaluating parties cannot take any records, including taking notes, during their file access to the documents that are classified as the Authority's internal correspondence at the Authority's head office. Surprisingly, more recent electricity investigations showed that while the parties are not permitted to take records of the Authority's internal correspondence, they are allowed to take notes during their access. The reason of this change can be the Board's different evaluation based on the solid facts of the recent cases, or the objections of the interested parties in the referred to investigations. In fact, the efficient use of the right to access files has critical importance for the parties. Beyond any doubt, the freedom to take notes during file access will have a positive effect on the investigation party's rights of defense.

(Authored by Elif Mungan and first published by Erdem&Erdem on June 2018)

1 The Board decisions: No:17-16/234-99 (15 May 2017), No: 17-16/235-100 (15 May 2017), No: 17-18/273-117 (1 June 2017), No: 17-18/274-118 (1 June 2017), No: 17-18/272-116 (1 June 2017).

2 The Board decisions, No: 17-22/352-157, 13 July 2017.   

3 The Board decisions, No: 18-06/92-47, 20 February 2018.

4 The Board decisions, No: 17-39/624-271, 28 November 2017.