Antitrust Practices: Clearances, Unfair Competition, and Enforcement in Türkiye

1) What types of unfair competition are prohibited in your jurisdiction?

Under Turkish law, unfair competition encompasses a range of prohibited practices aimed at gaining an improper advantage over competitors. These acts include engaging in misleading advertising, denigrating competitors, creating confusion with another party’s goods or services, unlawfully using or disclosing trade secrets, and carrying out unlawful comparative advertising. Such practices undermine fair market conditions and distort competition. The Turkish Commercial Code sets out these rules to ensure transparency and fairness in commercial activities. Companies found engaging in unfair competition may face legal sanctions and liability for damages.

2) What types of bid rigging exist, and how are they classified?

Under Turkish law, bid rigging involves coordinating bids in order to gain unfair advantage and restrict competition in public procurements. Such practices prevent the tender process from being conducted fairly and transparently. The most common types of bid rigging include collusive bidding, bid suppression, and bid rotation. These practices are anti-competitive and are prohibited under Turkish law. Law No. 4054 on the Protection of Competition (“Law No. 4054”) and the relevant public procurement regulations aim to prevent such conduct. In addition, under the Public Procurement Law No. 4734, bid rigging may also constitute a criminal offense, meaning that such conduct can lead to both competition law sanctions and criminal liability.

3) How do antitrust authorities detect and investigate cartels and anti-competitive agreements?

In Turkish law, the detection and investigation of cartels and anti-competitive agreements are carried out by the Competition Authority. The process generally begins with a complaint, a notification, or an ex officio decision of the Board. During the preliminary inquiry, companies may be requested to provide information and documents; if deemed necessary, on-site inspections (dawn raids) are conducted, and digital records as well as communications are examined. Leniency applications, whereby cartel members confess the infringement, also serve as an important source of evidence. In addition, economic analyses such as price movements, market shares, and bidding patterns are evaluated. Based on all the evidence collected, the Competition Board delivers its final decision and, if an infringement is established, imposes significant administrative fines on the undertakings concerned. These sanctions may amount to up to 10% of the company's annual turnover, and the relevant managers/employees may be subject to personal fines of up to 5% of their annual income.

4) What measures can companies take to mitigate antitrust risks?

In Turkey, companies can mitigate antitrust risks by complying with the Competition Authority regulations under Law No. 4054. Measures include implementing competition compliance programs, providing regular employee training, and establishing internal policies prohibiting price-fixing, market allocation, and cartel agreements. Pre-approval of contracts, regular internal audits, legal consultation, and, if necessary, voluntary reporting of violations (leniency) can reduce penalties and strengthen a culture of compliance.

5) What are the specific rules governing undertakings with a dominant market position?

In Turkey, the protection of free and fair competition in markets is ensured under Law No. 4054 on the Protection of Competition. According to the law, undertakings may not engage in cartel agreements that restrict competition, abuse their dominant position, or pursue mergers or acquisitions that significantly hinder competition. The Competition Authority can impose administrative fines and corrective measures if violations are detected. Companies are encouraged to implement compliance programs and internal policies to prevent potential infringements. Merger control is also crucial: since 2022, transactions exceeding updated turnover thresholds must be notified to the Competition Authority, and failure to notify may result in invalidity of the transaction and administrative fines.

6) What powers do antitrust authorities have when conducting inspections?

Under Law No. 4054, the Turkish Competition Authority is empowered to request any information or documents it deems necessary from public institutions, undertakings, and associations of undertakings. Additionally, the Authority may conduct on-site inspections at undertakings and associations, examining books, documents, digital records, and assets, and may request written or oral statements. Such inspections are carried out by Authority experts with an official authorization, and in cases of obstruction, they may proceed with a warrant issued by a criminal judge.

Authors: Ali Ceylan, Gülendam Tüylüoğlu