Procedural Amendments in Competition Law: Analysis of the Recent Legislative Revisions

Introduction

The promulgation of Law No. 7511, officially published in the Official Gazette on May 29, 2024, effectuates substantial revisions to the Turkish Commercial Code and several other statutes, most notably impacting the procedural framework governing competition law in Turkey. These amendments, integrated into Law No. 4054 on the Protection of Competition (“Law”), are formulated to expedite the investigatory process, curtail procedural delays, and avert potential infringements on the rights of the parties involved. This legal discourse examines the modifications introduced by Law No. 7511, with a critical evaluation of their intended procedural efficiencies and anticipated applications.

Abrogation of the Initial Written Defense Right

The foremost amendment under Law No. 7511 involves the abrogation of the right to submit an initial written defense, previously delineated under Article 43 of the Law. Prior to this legislative change, the Competition Board ("Board") was mandated to notify the investigated entities within a 15-day period subsequent to the commencement of an investigation and solicit their written defenses within 30 days. The revised statute nullifies this requirement, thereby expediting the preliminary phases of the investigatory procedure.

Despite the elimination of the initial written defense opportunity, the amendment does not wholly abrogate the right of defense. The notification by the Board at this juncture pertains to preliminary suspicions of a violation, rather than a formal accusation, and thus, while there may be a perceived constraint on defense rights, there is no substantive infringement. The entities under investigation retain the prerogative to present their defenses and adduce evidence at subsequent stages of the procedure, thereby preserving the essence of their defense rights. The purpose of the amending law is to increase procedural efficiency and minimize delays without undermining the fundamental right of defense.

Moreover, the absence of an initial written defense does not infer a tacit admission of contradiction to law. The investigated parties retain the capability to submit pertinent evidence and articulate their defenses against the specific accusations as the proceedings advance. Consequently, the rescission of the initial defense provision should not be construed as an impairment of the fundamental right to defense.

Additional Written Opinions

An additional salient amendment pertains to the conditional mandate for the submission of additional written opinions. Under the revised framework of Law No. 7511, the preparation of additional written opinions is no longer an obligatory procedural step but is contingent upon specific conditions.

In instances where the Board's initial stance remains unaltered following the defense submissions against the investigation report drafted by the investigative body, an additional written opinion shall be warranted. Hence, the provision of such opinions is invoked based on necessity, underscoring a transition towards a more adaptive and contingent procedural mechanism in handling competition investigations.

Modification of Time Extension Criteria

Law No. 7511 further introduces critical modifications to the criteria governing extension requests pertinent to the submission of additional opinions. Prior to the enactment of these amendments, the investigative team was allocated a 15-day period to file an additional written opinion, and the investigated parties were accorded a 30-day period to deliver their third defenses, both of which were subject to a one-time extension upon request. The current legislative revision eradicates the provision for such extensions.

Post-amendment, which is geared towards expediting the investigatory process, the investigated entities may seek an extension of the initial 30-day defense period by an equivalent duration solely once, contingent upon the demonstration of justifiable reasons. This reform is projected to streamline the investigation phase, ensuring a more expedited and efficient resolution of the investigatory proceedings.

Conclusion

The procedural amendments effected through Law No. 7511 are anticipated to significantly truncate the duration of the investigatory processes within the competition law framework. These amendments are also expected to foster procedural simplicity and operational efficiency. Although apprehensions regarding potential rights impairments due to these modifications may surface, it is pertinent to note that the Board's authority to conduct on-site inspections and requisition any necessary documents or evidence from the parties remains intact as per the extant provisions of Article 44 of the Law.

Furthermore, interested parties retain the latitude to submit any evidence that may materially influence the investigation. The retention of the Board’s on-site inspection powers serves as a safeguard against any potential infringement or diminution of the defense rights of the parties involved.

The practical implications and efficacy of these procedural amendments in achieving the intended objectives of accelerated investigations and procedural efficiency will be discernible through their application in forthcoming cases. Continuous monitoring and analysis of these developments will be essential to ensure that the procedural integrity and fairness of competition investigations are maintained.

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