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As it is known, some amendments have been made in the Law No. 4054 on the Protection of Competition with the law, which was published in the Official Gazette No. 31165 on 24.06.20. In this context, it is necessary to examine the important subjects that are regulated. Because, although the market’s freedom is indispensable, it is clear that some amendments may cause serious issues for companies in practice. In this regard, the main issues that need to be addressed and that will be clarified are the changes about the companies in the market rather than the changes about process and internal order of the Competition Board.
Law No. 4054 Article 7 is related to the Mergers and Acquisitions and within the scope of this amendment, the effects that may arise as a result of the mergers are not only in terms of creating a dominant position in the market but also mergers and acquisitions that do not cause a significant decrease will be considered as violations. Therefore, the merger and acquisition transactions will lead to decreased competition in the market is now sufficient for the violation. Thus, during the period of company mergers & acquisitions, the effects of the transaction on the free market should be carefully analyzed in the context of the prohibition and contradiction mentioned above.
In case the competition in the market decreases and/or distorts as a result of mergers and acquisitions, the measures to be taken have been expanded. Hence, with the regulation introduced under Article 3 of the law of change, the Competition Board is empowered to execute structural measures as well as behavioral measures already in the law. In this context, the way for the Competition Board to make decisions on behalf of major and critical regulations, such as the transfer of the assets, partnership shares and transfer of activities of companies to another company and the demerger of companies, is opened. Here, even though the law has introduced a gradual measure of regulation, in other words, it is important to introduce a regulation that can end as the demerger of the company, despite of behavioural measures that manifest as certain activity restrictions must have been applied and failed to apply to structural measures.
Apart from these, the lines of on-site inspection have been determined by adding to Article 15, which is one of the general regulations. In this context, the experts coming from the Competition Board will be able to examine the corporate books, any data and documents kept in the information systems of the physical and electronic media, and even acquire hard copies of these documents.
In addition to these critical amendments, some advantageous regulations for companies are included within the change of law. For instance, within the amendment which had happened in the Article 41, Competition Board will not consider as subject of investigation the concerted actions and deals as long as it does not form a grave and clear violation. This situation seems to actually support the procedural economy. Similarly, one of the advantageous arrangements was brought by Article 10 within the change of law: Within the scope of Article 45, one of the general regulations, the response time for the report prepared at the end of the investigation phase, which is 30-day period, may be requested to be extended for a maximum of 30 days for a one-time period, within justified reasons. In this context, companies need to be attentive to ensure that the response time is not exceeded, since the justifications are determined only as a framework and the content is not specified in the law.
Again, companies can submit a commitment to the Competition Board during the ongoing preliminary research or investigation process, with the amendment to Article 43. This is a significant advancement for the companies. As a matter of fact, if the Competition Board decides that the commitment is sufficient to eliminate problems other than the problems arising from grave and clear violations, the Competition Board will not open an investigation against the company or decide to terminate the ongoing investigation. In addition, the reconciliation process has been added to the same article. In the investigation process, the reconciliation process may be initiated upon the request of the relevant companies or by the Competition Board, by taking the scope of the violation to the consideration. If a compromise is reached within the period that is determined by the Competition Board, it is also possible to make a discount of up to 25% in the administrative fine to be imposed. Moreover, once the reconciliation process has been concluded, the parties will not be able to file against the reconciliation text or an administrative fine.
In conclusion, within the enactment of the Law on Amendment, in line with the various amendments made in the Law on the Protection of Competition No. 4054, despite the fact that there were advantageous amendments on various issues, the companies need to be very careful while performing almost all transactions and at that stage, Law on the Protection of Competition should be taken into account. In this context, it reveals that the companies need to be quite careful at the stage of conducting behaviours that are likely to affect the market.