The Legal 500

Focus items for this edition: Competition conditions for the energy market

Focus items for this edition: Competition Board Market Report, Liability of Electricity Market Players, Natural Gas Storage, Wind & Solar and the Akkuyu Nuclear PP

Focus items for this edition are: Turkey 2011 Progress Report and the Communiqué on the Increase of the Lower Limit for Administrative Fines

Focus items for this edition are: Turkey 2011 Progress Report and the Communiqué on the Increase of the Lower Limit for Administrative Fines

Focus items for this edition are: Turkey 2011 Progress Report and the Communiqué on the Increase of the Lower Limit for Administrative Fines

New Communiqué for Mergers and Acquisitions Calling for Authorization of the Competition Board Approval

Although there have been solid written rules as to how a company could be listed on the Istanbul Stock Exchange (the “ISE”), the Capital Markets Board (the “CMB”) had not provided for any rules on de-listing of companies quoted and being traded on the ISE until very recently.

On June 30th, 2010, a new chapter of the accession negotiations between the European Union and Turkey was opened, on the very last day of the Spanish presidency.

The definition of “whistleblowing” in the Thesaurus of the International Labour Organization (ILO) is: “The reporting by employees or former employees of illegal, irregular, dangerous or unethical practices bty employers.” To protect both private and public-sector whistleblowers from occupational harm such as dismissal, suspension, demotion, forced or refused transfers, ostracism, reprisals, threats, or petty harassment, an increasing number of countries are adopting legislation on whistleblowing procedures. The global corruption-monitoring organization Transparency International has described whistleblowing as a 4-stage process :

Market competition is regulated in Turkey by the Competition Law enacted on 7 Decem-ber 1994. The regulatory authority is the Competition Authority and the decision-mak-ing body is the Competition Board. The Com-petition Law has three pillars: (i) agreements, decisions and practices preventing, distort-ing or restricting competition in markets for goods and services; (ii) abuse of dominance by the undertakings dominant in the market; and (iii) the control of mergers and acqui-sitions that could lead to the creation or strengthening of a dominant position.

Any concentration between the parties may also include certain restrictions. Especially, restrictions are imposed on the vendor if the vendor has substantial know-how, customer portfolio and distribution network in the market and the purchaser is new to the market in question. In such situations, non-compete and non-solicitation clauses, restrictions on intellectual property rights and supply and purchase agreements may be imposed on the vendor in order to protect the business and the goodwill of such business acquired by the purchaser. Such restrictions are generally defined as “ancillary restrictions” under competition legislation. Under normal circumstances they would be considered as restricting competition in the market; however, in case of implementation of a concentration, they are not considered as anti-competitive but necessary if the scope, duration and the geographical area of such restrictions do not exceed what the implementation of the concentration reasonably requires.

At the Helsinki European Council in December 1999, the Republic of Turkey was officially recognized as an accession candidate country to join the European Union. Negotiations pertaining to accession talks include Turkey’s competition policy. The 2005 accession talks in Brussels required Turkey to align itself with the European Union Legislation.

Law No - 4054 on the Protection of Competition (the "Law") has been substantially amended by Law No: 5728 published in the Official Gazette on 8 February 2008 (the "Amendments"). The Amendments provide for: (i) the calculation of fixed fines; (ii) the introduction of new fines to be levied against the directors and employees of the undertakings who exerted decisive influence that resulted in the infringement of the Law; (iii) the introduction of a leniency mechanism; and lastly (iv) the collection of fines. 

The Amendments are expected to significantly increase the enforcement powers of the Competition Board (the "Board").

Contributed by Gönenç Gürkaynak, Esq.
Partner
ELIG, Attorneys-at-LawApril 2007

In the 10 years since the competition legislation came into force in Turkey, sectors have faced a vast number of antitrust investigations.

The Article 167 of Turkish Constitution attributed to the government the duty to take ?for money, credit, capital, product and service markets, measures providing and improving healthy and regular procedures? to prevent ?monopolization and cauterization created as result of activity or agreement in the markets?.