In accordance with the Competition Act, there is no difference between undertakings and individuals. The Competition Act definition of 'undertakings' is 'natural and legal persons who produce, market and sell goods or services in the market, and units [that] can decide independently and . . . constitute an economic whole'. The Competition Act also defines an association of undertakings as any type of association, with or without legal personality, which is formed by undertakings to accomplish particular goals.
Contravention of the Competition Act can result in administrative (civil) or criminal penalties. Administrative fines may be issued to undertakings, associations of undertakings or affiliates of these associations infringing the Competition Act. The nature and application of fines, the acts resulting in them and their method of calculation are set out in Section 3 of the Competition Act in Articles 16 and 17.
Criminal sanctions apply to all types of agreement and concerted practice between undertakings set out in Article 4 of the Competition Act, and those that abuse a dominant position in any market for certain goods and services or distort competition through any behaviour mentioned in Article 6 will be obliged to indemnify any type of damage to injured parties according to Article 57 of the Competition Act.
'Cartel' is a common concept that refers to anticompetitive agreements or concerted practices among competitors, including price fixing, market allocation, restriction of supply, or imposition of quotas and collusive bidding in tenders. Cartels, which are accepted as the most severe competition restriction, strive to increase their profits by controlling different market-related variables, especially price and quantity.
Due to the severe damage they do to the economy, there is worldwide consensus among competition authorities that cartels should be treated differently to other practices restricting competition and should be punished in the most harsh manner.
In accordance with the Competition Act, those actively cooperating with the Competition Board may have their fines reduced taking into consideration the quality, efficiency and timing of their cooperation. The means of demonstrating the explicit grounds and terms for immunity from or reduction of fines in the case of cooperation, and procedures and principles in relation to cooperation, are determined by the Regulation on Active Cooperation for Detecting Cartels (Leniency Regulation).
Compared with other types of infringement, it is more difficult to detect and investigate cartels, since they are secret by nature unless parties to a cartel cooperate with the Competition Board in accordance with the Leniency Regulation. Therefore, it is helpful if penalties are: not imposed on, or are reduced for, those who actively cooperate with the Competition Authority; assessed independently for each undertaking party to the cartel and their managers; and waived for employees who help detect and investigate cartels.
In addition, those who actively cooperate with the Authority in detecting and investigating cartels should not be left at a disadvantage compared with those who do not cooperate. Therefore, in cases where the Leniency Regulation has no clear provision and requires interpretation, it is essential that the conclusion favours those who cooperate.
Additionally, a conciliation procedure for cartel investigations, similar to a plea bargain in many countries, is currently at bill stage with the Competition Board, and is based on the principle of reduced punishment if an enterprise accepts responsibility for a breach. However, if the leniency programme is applied successfully, such method will not be required.
There are special regulations concerning cartels that have been drawn up based on articles of the Competition Act: the Regulation on Active Cooperation for Detecting Cartels and the Guidelines on the Explanation of the Regulation on Active Cooperation for Detecting Cartels.
The ICN is directed by 'steering groups' composed of 15 selected members, including Turkey and three ex officio appointed member competition agencies. The ICN working groups that currently exist cover mergers, cartels, agency effectiveness, competition advocacy and unilateral conduct. The Turkish Competition Authority was the co-chair of the Competition Policy Implementation Working Group, which is now called the Agency Effectiveness Working Group, and the Unilateral Conduct Working Group, and as of 2017, it is the co-chair of a sub-group of the Cartel Working Group.