The Turkish Competition Authority (''TCA'') published the Regulation on Active Cooperation for Detecting Cartels (''Regulation'') in the Official Gazette dated 16.12.2023. The Regulation is also known as the “Leniency Regulation”.
In this context, the Regulation was put into force without any significant amendment to the Draft Regulation on Active Cooperation for Detecting Cartels, which was opened to public opinion a few weeks ago by the TCA.
The Regulation entered into force as of its publication date, 16.12.2023. The main amendments made compared to the provisions of the abolished Regulation can be listed as follows:
In order to make a clear distinction between the active cooperation institution, which is essentially a method of obtaining evidence, and the conciliation institution, which is an alternative file finalization procedure, a requirement to submit documents that create added value has been introduced for those who will apply for active cooperation.
Legal certainty has been provided for those who are in a vertical relationship with the parties of the aggregate-distribution cartel or other cartel facilitators, who are held liable in the same way as the cartel parties in terms of administrative sanctions in practice, to benefit from active cooperation.
The Regulation also provides for the application of the provisions of the Regulation in the event that the applicants apply for active cooperation with the idea that they may have been a party to a cartel and the application is accepted and decided by the Competition Board ("Board"), but the Board does not consider the infringement as a cartel at the end of the investigation process.
Pursuant to the abolished Regulation, undertakings, managers and employees who actively cooperated with the Authority were required to submit information and documents to the Authority before the notification of the investigation report in order to reduce the fines to be imposed, whereas the New Regulation requires the submission of information and documents to the Authority within three months following the notification of the investigation report in order to reduce the fines to be imposed. However, pursuant to Provisional Article 1 added to the Regulation, this three-month period will not apply to investigations initiated before the entry into force of the Regulation.
As a result of active cooperation, the discount rates for fines have been slightly reduced. In this framework, the discount rates have been revised as 25% for cases with 1/3 discount rate, 20% for cases with ¼ discount rate and 15% for cases with 1/6 discount rate.
On the other hand, pursuant to Provisional Article 2 added to the Regulation, it is regulated that the provisions of the abolished Regulation regarding the conditions and procedure and the provisions regarding the discount rates will continue to be applied in favor of the applicant in terms of active cooperation applications submitted before the entry into force of the Regulation.