Defence Rights in Turkish Competition Law

Article 38(1) of the Turkish Constitution sets forth the presumption of innocence by indicating that no one shall be considered guilty until proven guilty in a court of law. Additionally, Article 36 of the Turkish Constitution also guarantees the right to a fair trial. Accordingly, under competition law, the burden of proof rests with the Turkish Competition Authority (Authority) except for concerted practice allegations. In this regard, aside from the instances where concerted practice is presumable, the Authority is fully responsible for proving its case through meeting the requisite standard of proof established in the legislation and case law.

During the investigation phase, the Authority must inform the undertakings of the charges they face without omitting or hiding any element of its case, to allow a full right of defence. In line with this, Article 44(3) of Law No. 4054 on the Protection of Competition (Law No. 4054) establishes that the Turkish Competition Board (Board) may not base its decisions on issues about which the parties have not been informed and granted the right to defence, and therefore, the investigated undertaking must be given the opportunity to submit their defences. Certain amendments have been made to Articles 43 and 45 of Law No. 4054 governing the investigation process before the Authority within the scope of Articles 4 and 5 of Law No. 7511 on Amendments to the Turkish Commercial Code and Certain Laws, which entered into force on May 29, 2024. Before the amendment, undertakings had the opportunity to submit three different written defences before the Authority: (i) the “first written defence” against the Authority’s investigation notice, (ii) the “second written defence” against the Authority’s investigation report, and (iii) the “third written defence” against the Authority’s additional written opinion. After the written defences, the undertakings had the opportunity to make an oral defence before the Board. With the amendments, the right to submit the “first written defence” against the Authority’s investigation notice is abolished, and the right to submit the “third written defence” against the additional written opinion is granted only if the Investigation Committee makes changes in its opinions presented in the investigation report. Finally, the period for submitting the “third written defence,” which previously could be extended up to 60 days, is now limited to a maximum of 30 days. Accordingly, the administrative procedure set forth under Law No. 4054 guarantees the right to present one or two written (as applicable) and one oral defence submissions to the undertakings that are subjected to an investigation. In addition to this, Article 44(1) provides that the investigated undertakings may submit any information or evidence to the Board at all times during the investigation period.

For more information on defence rights in Turkish competition law, please feel free to reach out to ELIG Gurkaynak at +90 212 327 1724 or through gonenc.gurkaynak@elig.com.