Immunity, Sanctions & Settlements 2017

Last verified on Monday 3rd July 2017

Turkey

Gönenç Gürkaynak and Hakan Özgökçen
ELİG, Attorneys-at-Law

    Immunity or a 100 per cent reduction in sanctions

  1. 1.

    What benefits are available to the first applicant to qualify?

  2. Under the Turkish leniency regime, the first undertaking to file a leniency application that fulfils certain criteria before a pre-investigation is launched by the Turkish Competition Authority (Authority) may benefit from total immunity. In addition, even after the authority has launched a pre-investigation, the first applicant could benefit from total immunity provided that:

    • the application is made before the service of investigation report.
    • the Turkish Competition Board (Board) must not be in possession of any evidence implicating a cartel infringement by the time of application is made. It should be noted that the Board has a measure of discretionary power in deciding whether the evidence in its possession suffice to conclude that there is an infringement or not.

    As per article 16 of Law No. 4054 on Protection of Competition (Law No. 4054), employees or managers of the undertaking concerned might face fines of up to five per cent of the fine imposed on the undertaking. However, employees or managers of the first applicant would also benefit from the full immunity or reduction in fines under certain circumstances. For there to be total immunity, the applicant must not be the coercer. If this is the case (ie, if the applicant has forced the other cartel members to participate in the cartel), there would only be a reduction of between 33 and 50 per cent for the undertaking and between 33 and 100 per cent for the employees or managers.

  3. 2.

    Do the protections extend to current and former officers, directors and employees?

  4. As stated under question 1, the current employees of a cartel undertaking can also benefit from the same level of leniency or immunity that is granted to the undertaking until the investigation report is officially served. Such an application would be independent from (if any) applications by the cartel member itself. Depending on the application order, there may be total immunity from, or reduction of, a fine for such manager or employee. The reduction rates and conditions for immunity or reduction are the same as those designated for the cartel members. On the other hand, under the Guidelines on The Explanation Of The Regulation on Active Cooperation For Detecting Cartels (Leniency Guidelines), there are no barriers before former managers and employees benefiting from the applications filed by undertakings. However, there are no precedents for the status of former employees as yet.

  5. 3.

    Is immunity available after an investigation begins?

  6. Yes. As stated under question 1, even after the Authority has launched a pre-investigation, the first applicant can benefit from total immunity provided that:

    • the Authority must not be in possession of any evidence implicating a cartel infringement by the time application is made; and
    • the application is made before the service of investigation report.

    Therefore, immunity is available during the investigation up until the service of the investigation report. Immunity or fine reduction is not available after the service of the investigation report.

  7. 4.

    What are the eligibility requirements before an investigation begins?

  8. Pursuant to the Regulation on Active Cooperation for Detecting Cartels (Leniency Regulation), the following conditions must be met in order for a cartelist to benefit from immunity or a fine reduction. It should be noted that, the Leniency Regulation sets out the governing principle when assessing whether these conditions have been fulfilled as "interpretation to the advantage of the applicants".  The eligibility conditions are as follows:

    • the applicant must submit information on the products affected by the cartel; information on the duration of the cartel; names of the cartelists; specific dates, locations and participants of the cartel meetings; and other information or documents about the cartel activity. In this regard, the applicant must submit all information and documents on the cartel it has in its possession. The required information may be submitted verbally. The officers may put this information in a written form;
    • the applicant must avoid concealing or destroying information or documents on the cartel activity;
    • unless the Authority’s Cartel and On-Site Inspection Support Unit (Leniency Division) decides otherwise, the applicant must stop taking part in the cartel;
    • unless the Leniency Division instructs otherwise, the application must be kept confidential until the investigation report has been served;
    • the applicant must continue to actively cooperate with the Authority until the final decision on the case has been rendered;
    • the application must be made independent from other undertakings, managers and employee parties to the cartel as it is not possible for the cartel members to make joint applications to benefit from the leniency regulation; and
    • for immunity, the applicant must not coerce other members of the cartel into infringement, if so they will lose the right to immunity but can benefit from reductions in fines.

    On a separate note, it is not required that the Authority should lack sufficient evidence to take a decision to conduct on-spot inspections or the specific requirement for the submission of documents and information sufficient to conduct on-spot inspections. 

  9. 5.

    What are the eligibility requirements after an investigation begins?

  10. Other than the above stated conditions, in order for an undertaking to benefit from full immunity after an investigation begins, the Authority must not be in possession of any evidence implicating a cartel infringement and the application must be made before the service of investigation report. Additionally, as per the Leniency Guidelines, the possibility to be granted immunity from fines is deemed to be higher for those who apply soon after the Board’s decision to conduct a pre-investigation is taken or the preliminary inquiry is initiated than for those who apply at later stages.

  11. 6.

    Will the applicant have to admit to a violation of law?

  12. The leniency applicant must admit the violation of law and must provide the Authority with the evidence showing the violation of law.

  13. 7.

    Are ringleaders or initiators of the conduct eligible?

  14. In order to benefit from full immunity, the applicant must not have been the coercer. If the applicant has coerced any other cartel members to participate in the cartel, it will lose its right to immunity and a reduction is only available between 33 and 50 per cent for the undertaking and between 33 and 100 per cent for the employees or managers. Thus, coercers can only benefit from a second degree reduction in fine. Coercion can only be established when it’s demonstrated, by hard evidence, that the applicant used physical violence, or severe economic pressure with a high probability of market foreclosure such as collective boycotts, or related threats. By example, being the largest player in the market, threatening to launch a price war in case of a refusal to participate in the market, lowering the price so as to reduce profitability or using various mechanisms to punish non-compliance with the collusion would not be interpreted as coercion to infringement.  

  15. 8.

    When must the applicant terminate its involvement in the conduct?

  16. The applicant must stop taking part in the cartel in order to apply for leniency unless otherwise instructed by the Leniency Division. The Leniency Division evaluates whether the applicant must end its involvement in the cartel based on the dynamics of the case at hand. Therefore, the applicant must terminate its involvement in the cartel before the leniency application is submitted.

  17. 9.

    What constitutes termination of the conduct?

  18. Neither the Leniency Regulation nor the Leniency Guidelines contain any explicit provision in terms of what constitutes termination of the conduct. However, termination of conduct could be defined as ceasing to take part in the cartel arrangement.

  19. 10.

    Will the applicant be required to make restitution to victims?

  20. Article 57 et seq of the Competition Law entitles any person who is injured in his business or property by reason of anything forbidden in the anti-trust laws to sue the violators for three times their damages plus litigation costs and attorney fees. The case must be brought before the competent general civil court. In practice, courts usually do not engage in an analysis as to whether there is actually a condemnable agreement or concerted practice, and wait for the Competition Board to render its opinion on the matter, therefore treating the issue as a prejudicial question. Since courts usually wait for the Competition Board to render its decision, the court decision can be obtained in a shorter period in follow-on actions. An immunity or leniency does not have a binding effect on the court so third parties that are aggrieved by the violation can sue offending parties before a civil court despite the existence of an immunity or leniency.

  21. 11.

    Can more than one applicant qualify for immunity?

  22. Under the Turkish leniency regime, only the first applicant can benefit from full immunity and other applicants can only qualify for reduction in fines based on their marker status and they would benefit from a reduction of fine. 

  23. 12.

    Can an applicant qualify if one of its employees reports the conduct to the authority first?

  24. According to the Leniency Regulation, a manager or employee of a cartelist may also apply for leniency until the investigation report is officially served. Such an application would be independent from, if any, applications by the cartel member itself.

  25. 13.

    Does the afforded protection extend to any non-antitrust infringements?

  26. No, under the Turkish leniency regime, the protection is limited to antitrust infringements and is solely applicable for cartel cases.

  27. 14.

    What confidentiality assurances are given to the first applicant to report?

  28. Owing to the confidential nature of leniency programmes, information on applicants and their employees and managers is not made public by the Authority until the investigation report is officially served.

    Under the principles set out under the Leniency Regulation, the applicant (the undertaking or employees/managers of the undertaking) must also keep the application confidential until the investigation report is officially served, unless it is otherwise requested by the authorised unit.

    Articles 6 and 9 of the Leniency Regulation provide that unless otherwise stated by the authorised division, the principle is to keep leniency applications confidential until the service of the investigation report. Nevertheless, to the extent the confidentiality of the investigation will not be harmed, the applicant undertakings can provide information to other competition authorities or institutions, organisations and auditors. Under paragraph 44 of the Leniency Guidelines, if the employees or personnel of the applicant undertaking disclose the leniency application to the other undertakings and breach the confidentiality principle, the Competition Board will evaluate the situation on a case-by-case basis, based on the criteria of whether the person at issue is a high level manager, or whether the Competition Board was notified promptly enough after the breach or not.

    Also, a leniency applicant or other cooperating party can request confidentiality of trade secrets under Communiqué No 2010/3 on the Regulation of Right to Access to File and Protection of Commercial Secrets (Communiqué No 2010/3) published in the Official Gazette numbered 27556 and dated 18 April 2010 or confidentiality of information. 

  29. 15.

    Does the authority publish guidance regarding the application of the programme?

  30. Yes, the Authority published and announced the Leniency Guidelines on 19 April 2013. Moreover, the reasoned decisions of the Board regarding cartel investigations that set out a precedent for the application of Turkish competition law legislation are being published on its website. 

  31. 16.

    Do the rules for obtaining immunity in your jurisdiction conflict with the immunity rules in other jurisdictions?

  32. When the purpose and nature of the leniency programmes are taken into consideration, it is quite unlikely for the rules of obtaining immunity in two different jurisdictions to conflict. There could only be minor differences, depending on the judicial system of the each jurisdiction. Besides this, the Turkish leniency regime is closely modelled on the European Union (EU) leniency regime. It is akin to, if not the same as the EU leniency regime.

    Immunity application and marker process

  33. 17.

    What is the initial process for making an application?

  34. The initial process for making an application is obtaining a marker. This marker system allows all leniency applicants to protect their place in the queue for a period of time. This grace period can be granted by the Authority in order to allow applicants to submit the necessary information and evidence provided under the Leniency Regulation and to complete their applications.

    If the information and documents are completed within the grace period granted by the Leniency Division, the application will be considered to be filed on the date when the grace period was granted. Thus, applicants who want to benefit from the Leniency Regulation may either directly proceed to make formal application that includes all the necessary information/document or apply for a marker, either verbally or in written form, to gather the required information and documents. In case the information required for a marker is submitted verbally, the submitted information should be put into writing by the administrative staff of the Authority and confirmed by the relevant applicant or its representatives.

    Further, the undertakings that wish to benefit from the leniency can anonymously call the Leniency Division in order to obtain information on whether they would be able to benefit from the immunity or reduction in fines in case they applied. In this case, those who wish to apply would need to provide sufficient information on the product and market related to the cartel to allow for an evaluation on the subject. The level of information required to allow an evaluation would vary depending on the specifics of the individual case. 

  35. 18.

    What information is required to secure a marker?

  36. Pursuant to the Leniency Regulation in order to secure a marker the applicant should provide rough information on:

    • the products affected by the cartel;
    • the duration of the cartel; and
    • the names of the cartelists.
  37. 19.

    How much time will an applicant have to perfect its marker?

  38. The Leniency Regulation does not provide an explicit provision concerning ‘the period that could be determined’. Such period shall be set on the dynamics of each individual case. However, according to the Leniency Guidelines, as a rule of thumb, this grace period shall not be more than a month in principle. 

  39. 20.

    Can the deadline for perfecting the marker be extended?

  40. According to paragraph 59 of the Leniency Guidelines, the Leniency Division may extend the period owing to valid justifications such as examination of thousands of documents, interviewing dozens of employees meaning it struggles to have sufficient time. Paragraph 60 of the Leniency Guidelines further provide that requests for a time extension should be considered carefully since they may increase the possibility of taking measures that diminish the success of the investigation, and the possibility of leaking information to other cartel members. Thus, in the letters concerning time and time extensions, it would be beneficial to provide a detailed explanation of the information on the kinds of examinations that the applicant should conduct within the undertaking and the reason why the set time is essential for the examinations and whether the cartel formation is still in existence.

  41. 21.

    What is required to perfect the marker?

  42. To perfect the marker within the time frame granted by the Authority the applicant must submit:

    • information on the products affected by the cartel;
    • information on the duration of the cartel;
    • names of the cartelists;
    • dates, locations and participants of the cartel meetings; and
    • other information or documents about the cartel activity.
  43. 22.

    Can the scope of the marker be expanded if additional information is discovered by the applicant?

  44. For the Leniency Division to grant the requested period of time, the information on the products that the cartel effects, duration of the cartel and information about the names of the cartel members should be submitted by the applicant. Therefore, the scope of the marker should be well defined. Even though it is not yet regulated or tested under Turkish leniency regime, it is quite likely that the Authority will be reluctant to expand the scope of the marker, especially in cases where there is already a second applicant.

  45. 23.

    Can an applicant lose its marker if a second applicant comes forward with better information?

  46. So long as the first applicant perfects its marker within the time frame granted by the Authority by submitting the information from question 21, there will be no reason for the first the applicant to lose its marker even if the second applicant comes forward with better information obtained during internal investigation.

  47. 24.

    What if the applicant’s investigation reveals that no violation exists?

  48. Although there is no explicit principle for dealing with this scenario under the Turkish leniency regime, in the case where the applicant’s investigation conducted within the undertaking reveals that no violation exists, and it failed to provide a violation, it is highly likely that by the end of the marker duration the application would be void.

  49. 25.

    What if the authority decides not to investigate?

  50. Where the Board determines that no violation exists, the Board would not investigate the matter further. Although such a scenario is not regulated under the legislation, since there would not be any investigation and potential fine to be imposed to the undertaking, it is highly likely that the leniency application would be invalid.

    Immunity cooperation obligations

  51. 26.

    What is the applicant required to produce?

  52. The applicant should substantiate the existence of the infringement. To that end, the applicant must provide information on the products affected by the cartel, duration of the cartel, names of the cartelists, dates, locations and participants of the cartel meetings and other information or documents about the cartel activity. In this regard, the applicant must, submit all information and documents on the cartel they have in their possession. Moreover, the applicants are also obligated to submit any new information or documents they receive until the Board takes its final decision following the conclusion of the investigation.

  53. 27.

    Will the applicant be required to make a written confession?

  54. Even though the applicant is required to accept its involvement in the violation, the applicant is not required to make a formal written confession under the Turkish leniency regime.

  55. 28.

    Can third parties obtain access to the materials provided by the applicant?

  56. According to paragraph 67 of the Leniency Guidelines, in accordance with the Communiqué No. 2010/3, persons other than the ones under investigation, for example, complainants, cannot access the documents submitted under leniency application. Also, those who are under investigation can request access to the information and documents used as evidence in the cartel following the delivery of the investigation report by the Authority and use these documents solely in relation to the defence and administrative judiciary purposes limited to the file.

  57. 29.

    Will the applicant lose its protection if one or more of its employees refuses to cooperate?

  58. According to paragraph 76 of the Leniency Guidelines, the Board may not grant immunity to the applicant in cases where one or more of its employees refuse to cooperate. In its decision, the Board considers the facts such as the number of executives/employees who do not cooperate with the Authority, their positions within the undertaking and the effort made by the undertaking to enable these individuals’ cooperation. Therefore, in practice, application of a reduction is at the Board’s sole discretion. 

  59. 30.

    Will the applicant lose its protection if one of its employees engages in obstructive conduct before or after the application?

  60. According to article 6 of the Leniency Regulation, the undertaking must cooperate with the Leniency Division until the final decision of the Board. Therefore, if one of its employees engages in obstructive conduct the undertaking may lose its protection. It is up to the Board’s discretion whether to revoke the immunity. In case of rejection by the Board, the applicant may request the return of the information and documents submitted. 

  61. 31.

    Will the applicant be required to provide materials protected by attorney-client privileges or work-product doctrine?

  62. The applicant is not explicitly required to provide materials protected by attorney–client privilege under the Turkish leniency regime. Correspondence between the outside counsels and the undertaking concerned are classified as confidential and privileged and protected under the attorney-client privilege. The request for reviewing these documents could be rejected. However, the correspondences between the undertaking concerned, its employees and internal lawyers do not benefit from the attorney client privilege.

    Granting immunity

  63. 32.

    How does the authority announce its promise not to charge or sanction?

  64. Upon the proper application for leniency, the Board would grant provisional acceptance to the applicant when it decides whether to launch a fully fledged investigation into the matter after taking the opinion of the Leniency Division and serves it solely to the applicant (ie, owing to the confidentiality reasons the outcome of the application is not made public). Final acceptance is subject to the applicant’s continued cooperation throughout the investigation. The final acceptance occurs with the final decision of the Board.

  65. 33.

    Does the authority put its commitment in writing?

  66. Yes, the Board issues its decision regarding the leniency application in written form.

  67. 34.

    Who is given access to the document?

  68. The document containing the decision of the Board on the leniency application can only be seen by the applicant until the investigation report is served due to the confidentiality.

  69. 35.

    Does the authority publish a model letter for conferring immunity?

  70. There is no model letter for conferring immunity published by the Authority. Upon application, the Board grants its written decision.

    Individual immunity or leniency

  71. 36.

    Is there an individual immunity programme?

  72. Yes, there is an individual immunity programme under Turkish leniency regime. According to article 7 of the Leniency Regulation, the employee or executive of the undertaking that applies for leniency and supplies the information and documents specified in article 9 of the Leniency Regulation before the Authority conducts its preliminary investigation or after the preliminary investigation up until the investigation report is officially served will not be subject to any fines.

  73. 37.

    What is the process for applying?

  74. The application process is the same as the process for undertakings, see question 17.

  75. 38.

    What are the criteria for qualifying?

  76. In cases where the manager or employee applies before the pre-investigation or the manager or employee applies from the pre-investigation until the service of the investigation report, and provided that the Authority does not already have sufficient evidence to find a violation of article 4 of Law No. 4054, full immunity from the fine can be granted, provided that the applicant is not the ringleader.

    In addition, in cases where the manager or employee applies as of pre-investigation until the service of investigation report, the first manager or employee can be granted at least one-third reduction in fines or no fine, the second manager or employee can be granted at least a quarter reduction in fines or no fine and others can be given at least one sixth reduction in fines or no fine at all.

    Revocation of immunity

  77. 39.

    On what basis can corporate immunity be revoked?

  78. In cases where the conditions stated in article 6 of the Leniency Regulation are not met, as set out under question 4 above, the leniency can be revoked by the Board.

    Within this framework, article 6(6) of the Leniency Regulation states that, where the immunity is revoked on the grounds that conditions stated under the first prong of article 6 of the Leniency Regulation (set out under question 4) are not fulfilled, or the applicant coerced the other undertakings that are members of the alleged cartel, the undertaking may be granted a 33 per cent to 50 per cent reduction in fine due to its contributions to the investigation. In addition, if immunity is revoked for an undertaking due to the reasons mentioned above, the managers and employees of the undertaking who admit to the violation and enter into cooperation may still be granted immunity or the fine to be imposed on them may be reduced by at least 33 per cent upon the discretion of the Board. 

  79. 40.

    When can it be revoked?

  80. When the conditions stated under the first prong of article 6 of the Leniency Regulation that must be met in order to be granted immunity are not fulfilled, the Board can revoke the immunity.

  81. 41.

    What notice is required to revoke?

  82. The Board issues its written decision on the revocation of the immunity granted to the undertaking.

  83. 42.

    Can the applicant file a judicial challenge to a decision to revoke?

  84. As per article 7 of Law No 2577 on Administrative Procedure, the administrative decisions of the Board can be challenged before the administrative courts in Ankara by filing an appeal case within 60 days upon receipt by the parties of the justified (reasoned) decision of the Board by the parties. As per article 27 of the Administrative Procedure, filing an administrative action does not automatically stay the execution of the decision of the Board. However, upon request of the plaintiff, the court, by providing its justifications, may decide the stay of the execution if:

    • the execution of the decision is likely to cause serious and irreparable damages; and
    • the decision is highly likely to be against the law (ie showing of a prima facie case).

    Reduction in sanctions

  85. 43.

    Does the leniency programme allow for reductions in sanctions?

  86. Yes, in cases where the applicant fails to be granted full immunity, they can still be granted reduction in fines under certain conditions.

  87. 44.

    What is the process for seeking a reduction in sanctions?

  88. According to the Leniency Regulation, the second and third undertaking to file an appropriately prepared application could receive a fine reduction in cases where the conditions stated under article 6 of the Leniency Regulation (which are set out under question 4 above) are met. The second applicant undertaking to file a correctly prepared application would receive a 33 per cent to 50 per cent reduction of the fine and its employees and managers, who actively cooperate with the Competition Authority would benefit from a reduction  between 33 per cent and 100 per cent. The third applicant would receive a 25 per cent to 33 per cent reduction and its employees and managers, who actively cooperate with the Competition Authority, would benefit from a reduction of between 25 per cent and 100 per cent. The subsequent applicant undertakings would receive a 16 per cent to 25 per cent reduction and their employees and managers would benefit from a reduction of between 16 per cent and 100 per cent.

    In cases where the Authority is in possession of any evidence implicating a cartel infringement by the time application is made, the first applicant could also be granted a fine reduction instead of full immunity.

  89. 45.

    Is there a marker process similar to immunity applications?

  90. Yes, the marker process for the reduction in a fine is the same as the marker process for the immunity applications. 

  91. 46.

    Are the reductions in sanctions fixed or discretionary?

  92. The range of the reductions is regulated under the Leniency Regulation and the Board has discretionary power to apply the reduction within the ranges prescribed in it.

  93. 47.

    How are the reductions in sanctions calculated?

  94. The range of the reduction is already determined by the Leniency Regulation and the Board has discretionary power to apply the reduction based on the dynamics of each case.

  95. 48.

    Are there sentencing guidelines?

  96. Yes. In February 2009, the Board announced the Regulation on Fines to Apply in Cases of Agreements, Concerted Practices and Decisions Limiting Competition, and Abuse of Dominant Position.

  97. 49.

    If an applicant's cooperation reveals self-incriminating information that expands the scope of the conduct known to the authority, will that conduct be factored into the fine calculation?

  98. There is no legal framework regulating the cases where the applicant’s cooperation reveals self-incriminating information that expands the scope of the conduct.

  99. 50.

    Are there fixed or discretionary discounts for the first applicant to cooperate after the immunity applicant (assuming there is an immunity applicant)?

  100. According to article 5 of the Leniency Regulation, the second undertaking to file an appropriately prepared application would receive a fine reduction of between 33 and 50 per cent. Employees or managers of the second applicant who actively cooperate with the Authority would also benefit from a reduction of between 33 and 100 per cent.

  101. 51.

    Other than fine reductions, are there additional incentives offered to an applicant that is the first non-immunity applicant?

  102. Yes, Amnesty Plus is regulated under article 7 of the Regulation on Fines.

  103. 52.

    Does the competition authority publish guidance regarding sentencing reductions?

  104. Yes. In April 2013, the Board published the Guidelines on the Explanation of the Regulation on Active Cooperation for Detecting Cartels (the Leniency Guidelines).

  105. 53.

    Does the authority provide for "Amnesty Plus" benefits?

  106. Parties who are unable to benefit from immunity in an investigation concerning a particular market and file the first application concerning a cartel in a different market, will both benefit from immunity from fines in relation to the cartel in the latter market and from additional reduction in fines imposed due to the cartel in the former market.

    In addition, according to article 7 of the Regulation on Fines, imposition of fines for the undertaking which cannot benefit from immunity under the Leniency Regulation will be decreased by 25 per cent if it provides the information and documents specified in article 6 of the Leniency Regulation (see question 4) prior to the Board’s decision of pre-investigation in relation to another cartel. 

  107. 54.

    How is the Amnesty Plus discount calculated?

  108. The amount of the reduction is regulated in the Regulation on Fines and explained further under question 53.

    Cooperation obligations for sentencing reductions

  109. 55.

    Are the cooperation obligations similar to those for immunity applicants?

  110. Yes, the cooperation obligations are same as immunity applicants. The obligations are stated under first prong of article 6 of the Leniency Regulation (which are set out under question 4 above). Please see questions 17 and 18.

  111. 56.

    Will the applicant be required to make a written confession?

  112. Even though the applicant is required to accept its involvement in the violation, the applicant is not required to make an official written confession.

  113. 57.

    Can third parties obtain access to the materials provided by the applicant?

  114. As stated under question 28, persons other than the ones under investigation, for example complainants, cannot access the documents submitted under a leniency application.

  115. 58.

    Will an applicant qualify for sentencing reductions if one or more of its employees refuse to cooperate?

  116. This issue is not clearly settled in the relevant legislations. However, the answer provided under question 29 could also be applied in this case. In other words, the Board may not grant a reduction in fines to the applicant in cases where one or more of the firm’s employees refuse to cooperate. In its decision, the Board considers the number of executives or employees who do not cooperate with the Authority, their positions within the undertaking and effort made by the undertaking to enable these persons’ cooperation. To that end, it can be stated that it is up to the Board’s discretion to apply a reduction or not.

  117. 59.

    Will the applicant lose its protections if one of its employees engages in obstructive conduct before or after the application?

  118. According to article 6 of the Leniency Regulation, the undertaking must cooperate with the Leniency Division until the final judgment of the Board. Therefore, if one of its employees engages in obstructive conduct, the undertaking may lose its protection. The decision of revocation will be given by the Board based on the dynamics of each case.

  119. 60.

    Will the applicant be required to provide materials protected by attorney-client privilege or work-product doctrine?

  120. The applicant is not required to provide materials that are protected by attorney–client privilege. See the explanations under question 31 for further information regarding the attorney-client privilege. 

  121. 61.

    Can an applicant challenge the amount of the reduction of sanctions?

  122. The decision of the Board is subject to the appeal before the administrative court. Therefore, the decision to revoke the immunity can also be appealed. Please see the explanations under question 42.

    Settlements

  123. 62.

    How is the settlement process initiated?

  124. As a general remark it should be noted that the settlement procedure is not regulated under the Turkish competition law regime. However, the draft law amending Law No. 4054 (Draft Law) included a provision regulating the settlement procedure. The Draft Law was officially submitted to the Presidency of the Turkish parliament on 23 January 2014, however it became obsolete due to the general elections in June and November 2015. At this stage, it remains unknown whether the Turkish parliament or the government will renew the draft law. However, it is anticipated that the main topics to be held in the discussions on the potential new draft competition legislation will not significantly differ from the changes that were introduced by the previous draft. Overall, there currently is no settlement mechanism available to the undertakings under Turkish competition law regime.

  125. 63.

    Is the amount of the sanction always fixed in the settlement agreement?

  126. Not applicable.

  127. 64.

    What role, if any, do the courts play in the settlement process?

  128. Not applicable.

  129. 65.

    Are the settlement documents, including any factual admissions, made public?

  130. Not applicable.

  131. 66.

    Is an admission of wrongdoing required?

  132. Not applicable.

  133. 67.

    Do companies that enter into settlement agreements receive an automatic sentencing discount?

  134. Not applicable.

  135. 68.

    Do all of the subjects of an investigation have to agree to the settlement procedure before it is initiated by the authority?

  136. The Draft Law does not contain any provision on this matter.

  137. 69.

    Will the authority settle with subjects who refuse to cooperate?

  138. Not applicable.

  139. 70.

    If the settlement discussions terminate without an agreement, may any information provided or statements made during the negotiations be used against the parties?

  140. Not applicable.

  141. 71.

    May a party to the settlement agreement void the agreement after it is entered?

  142. Not applicable.

  143. 72.

    Does the competition authority publish guidance regarding settlements?

  144. Not applicable.

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Questions

    Immunity or a 100 per cent reduction in sanctions

  1. 1.

    What benefits are available to the first applicant to qualify?


  2. 2.

    Do the protections extend to current and former officers, directors and employees?


  3. 3.

    Is immunity available after an investigation begins?


  4. 4.

    What are the eligibility requirements before an investigation begins?


  5. 5.

    What are the eligibility requirements after an investigation begins?


  6. 6.

    Will the applicant have to admit to a violation of law?


  7. 7.

    Are ringleaders or initiators of the conduct eligible?


  8. 8.

    When must the applicant terminate its involvement in the conduct?


  9. 9.

    What constitutes termination of the conduct?


  10. 10.

    Will the applicant be required to make restitution to victims?


  11. 11.

    Can more than one applicant qualify for immunity?


  12. 12.

    Can an applicant qualify if one of its employees reports the conduct to the authority first?


  13. 13.

    Does the afforded protection extend to any non-antitrust infringements?


  14. 14.

    What confidentiality assurances are given to the first applicant to report?


  15. 15.

    Does the authority publish guidance regarding the application of the programme?


  16. 16.

    Do the rules for obtaining immunity in your jurisdiction conflict with the immunity rules in other jurisdictions?


  17. Immunity application and marker process

  18. 17.

    What is the initial process for making an application?


  19. 18.

    What information is required to secure a marker?


  20. 19.

    How much time will an applicant have to perfect its marker?


  21. 20.

    Can the deadline for perfecting the marker be extended?


  22. 21.

    What is required to perfect the marker?


  23. 22.

    Can the scope of the marker be expanded if additional information is discovered by the applicant?


  24. 23.

    Can an applicant lose its marker if a second applicant comes forward with better information?


  25. 24.

    What if the applicant’s investigation reveals that no violation exists?


  26. 25.

    What if the authority decides not to investigate?


  27. Immunity cooperation obligations

  28. 26.

    What is the applicant required to produce?


  29. 27.

    Will the applicant be required to make a written confession?


  30. 28.

    Can third parties obtain access to the materials provided by the applicant?


  31. 29.

    Will the applicant lose its protection if one or more of its employees refuses to cooperate?


  32. 30.

    Will the applicant lose its protection if one of its employees engages in obstructive conduct before or after the application?


  33. 31.

    Will the applicant be required to provide materials protected by attorney-client privileges or work-product doctrine?


  34. Granting immunity

  35. 32.

    How does the authority announce its promise not to charge or sanction?


  36. 33.

    Does the authority put its commitment in writing?


  37. 34.

    Who is given access to the document?


  38. 35.

    Does the authority publish a model letter for conferring immunity?


  39. Individual immunity or leniency

  40. 36.

    Is there an individual immunity programme?


  41. 37.

    What is the process for applying?


  42. 38.

    What are the criteria for qualifying?


  43. Revocation of immunity

  44. 39.

    On what basis can corporate immunity be revoked?


  45. 40.

    When can it be revoked?


  46. 41.

    What notice is required to revoke?


  47. 42.

    Can the applicant file a judicial challenge to a decision to revoke?


  48. Reduction in sanctions

  49. 43.

    Does the leniency programme allow for reductions in sanctions?


  50. 44.

    What is the process for seeking a reduction in sanctions?


  51. 45.

    Is there a marker process similar to immunity applications?


  52. 46.

    Are the reductions in sanctions fixed or discretionary?


  53. 47.

    How are the reductions in sanctions calculated?


  54. 48.

    Are there sentencing guidelines?


  55. 49.

    If an applicant's cooperation reveals self-incriminating information that expands the scope of the conduct known to the authority, will that conduct be factored into the fine calculation?


  56. 50.

    Are there fixed or discretionary discounts for the first applicant to cooperate after the immunity applicant (assuming there is an immunity applicant)?


  57. 51.

    Other than fine reductions, are there additional incentives offered to an applicant that is the first non-immunity applicant?


  58. 52.

    Does the competition authority publish guidance regarding sentencing reductions?


  59. 53.

    Does the authority provide for "Amnesty Plus" benefits?


  60. 54.

    How is the Amnesty Plus discount calculated?


  61. Cooperation obligations for sentencing reductions

  62. 55.

    Are the cooperation obligations similar to those for immunity applicants?


  63. 56.

    Will the applicant be required to make a written confession?


  64. 57.

    Can third parties obtain access to the materials provided by the applicant?


  65. 58.

    Will an applicant qualify for sentencing reductions if one or more of its employees refuse to cooperate?


  66. 59.

    Will the applicant lose its protections if one of its employees engages in obstructive conduct before or after the application?


  67. 60.

    Will the applicant be required to provide materials protected by attorney-client privilege or work-product doctrine?


  68. 61.

    Can an applicant challenge the amount of the reduction of sanctions?


  69. Settlements

  70. 62.

    How is the settlement process initiated?


  71. 63.

    Is the amount of the sanction always fixed in the settlement agreement?


  72. 64.

    What role, if any, do the courts play in the settlement process?


  73. 65.

    Are the settlement documents, including any factual admissions, made public?


  74. 66.

    Is an admission of wrongdoing required?


  75. 67.

    Do companies that enter into settlement agreements receive an automatic sentencing discount?


  76. 68.

    Do all of the subjects of an investigation have to agree to the settlement procedure before it is initiated by the authority?


  77. 69.

    Will the authority settle with subjects who refuse to cooperate?


  78. 70.

    If the settlement discussions terminate without an agreement, may any information provided or statements made during the negotiations be used against the parties?


  79. 71.

    May a party to the settlement agreement void the agreement after it is entered?


  80. 72.

    Does the competition authority publish guidance regarding settlements?