Recidivism in Turkish Competition Law

Recidivism of an infringement, which is considered as an aggravating factor under the Regulation on Fines to Apply in Cases of Agreements, Concerted Practices and Decisions Limiting Competition, and Abuse of Dominant Position (Regulation on Fines), may be defined as the repetition of the same infringement by the same undertaking after being fined for the first one. Article 6(1)(a) of the Regulation on Fines indicates that the base fine shall be increased by half to one-fold for each repetition of the infringement.

The Turkish Competition Board’s (Board) decisions involving recidivism show that the Board does not require finalisation of the judicial proceedings for applying recidivism clauses and deems a previous Board decision concerning infringement by the same undertaking, to be sufficient to invoke recidivism. Therefore, to apply recidivism, there should be a determination of infringement committed previously by the same undertaking. A final decision imposing a monetary fine as a result of an investigation would be an example on that front. It should be noted that not all of the Board’s decisions may constitute a basis for recidivism. For example, the Board’s decisions rendered under Article 9(3) of Law No. 4054 on the Protection of Competition (opinion letters) are considered interim decisions and therefore cannot form a basis for recidivism.

As for the statute of limitations with respect to the recidivism, the Board applies an eight-year period (as determined under Law No. 5326 on Misdemeanours) with a view to relieving undertakings from the risk of being imposed aggravated fines for an infringement committed many years ago. The Board and the Council of State calculate the eight-year period from the date on which the first infringement decision is rendered rather than the date of the infringement itself.

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