The Competition Authority's dealings with public prosecutors are not big news. If the investigated acts are criminally prosecutable, the authority will typically file a report to the relevant public prosecutor's office to have the act criminally pursued after the antitrust investigation.
For instance, in Reysaş(1) the authority filed a complaint to the public prosecutor because the defendant firm's general manager hindered on-site inspections and allegedly prevented the authority's case handlers from fulfilling their duties.
Similarly, the authority is known to launch antitrust investigations into acts that have already been (or are being) criminally investigated. For instance, the antitrust investigation against the manufacturers/traders in Medical Consumables(2) largely rested on the public prosecutor's findings, since the defendant firms were already being tried for bid rigging. In Balıkesir Bakeries(3) the authority's investigation was triggered by a complaint from a public prosecutor who suspected an antitrust violation. There are many other cases where the authority followed similar paths in pursuing criminally prosecutable acts.
This reasonable approach has received widespread acceptance among competition law circles for several reasons:
- Antitrust violations such as bid rigging or illegal price manipulation (manipulation through disinformation or other fraudulent means) may also be condemned under Turkish criminal law;
- Public officials, such as the authority's staff, are statutorily required to report the crimes that they become aware of; and
- The authority is not allowed to act on a criminal matter and pursue criminal proceedings by itself, so it has to engage public prosecutors to that end.
Until now, the authority's officials understandably refrained from taking criminal action before a public prosecutor's office until the antitrust investigation had ended and the suspected antitrust violations had been proved. It did not initiate a public proceeding unless and until it was sure that the alleged antitrust activity (eg, bid rigging) had actually occurred and a criminal prosecution was warranted.
However, recent indications in practice suggest that the authority has changed its position. It seems that authority officials now take action before the antitrust investigation has been completed.
In two very recent investigations - which are currently pending before the authority - authority officials referred to the competent public prosecutor's office on suspicions of criminally prosecutable acts at the very early stages of an investigation. They did not wait until the end of the antitrust investigation to see whether the alleged actions actually occurred.
This new and unwarranted approach has raised questions and objections of 'opinion-giving before the final verdict' against the Competition Board, which is, of course, statutorily required to review and decide on cases impartially and independently. Objectors argue that filing a criminal report before a public prosecutor's office naturally indicates that authority officials are already convinced that a certain act has taken place. This is a premature move, as if the investigation has not been completed, the officials do not have all the facts on the act(s) in question. Therefore, there is concern that the board's decision processes are essentially a form of gun-jumping.
Authority officials seem to have adopted a defensive position. They argue that their actions do not have binding effect on the board, which might clear the defendant despite the criminal process. Critics object that the authority, including the board, forms a single, integrated unit and the board cannot dstance itself from the actions of authority officials.
These critics are now challenging this new approach; time will tell whether their efforts will prove successful.
For further information on this topic please contact Gonenc Gürkaynak at ELIG by telephone (+90 212 327 17 24), fax (+90 212 327 17 25) or email ([email protected]).
(2) See 08-74/1180-455, 19.12.2008.