The right of enterprises to participate in economic activity by engaging in industrial and commercial activities is an economic personality right based on constitutional principles (Constitution Article 48/1). The limits of this right are regulated in various laws based on the “objective principle of good faith” in Article 2 of the Civil Code. Some of these limits are regulated in the Law on the Protection of Competition based on the provision in Article 167/1 of the Constitution that “The State… shall prevent monopolization and cartelization arising from acts or agreements in the markets”.[1]

According to Article 4 of the Law on the Protection of Competition; Agreements between enterprises, concerted actions and such decisions and actions of associations of enterprises that directly or indirectly aim to prevent, disrupt or restrict competition in a specific goods or services market or that have or may have this effect are unlawful and prohibited.

As can be clearly understood from the provision, it is legally prohibited for competing businesses to make agreements or engage in concerted practices that prevent fair competition among themselves in a manner that is detrimental to other competing businesses in the relevant market.

It should be noted that behaviors that prevent or restrict competition may be in accordance with an agreement, or they may be in the form of concerted practices that prevent competitors from acting independently of each other and are not based on any agreement. The following statements are included in the justification of the relevant article regarding the subject: ‘It does not matter whether the agreement is written or verbal. Even if the existence of an agreement between the undertakings cannot be determined, direct or indirect relationships that provide a coordination or practical cooperation between the undertakings that replace their own independent behavior are also prohibited if they produce the same result. Thus, it is intended to prevent undertakings from legitimizing practices that restrict competition by deceiving the law.

In other words, Article 4 of Law No. 4054 does not only prohibit agreements whose purpose or effect is to prevent competition, but with the definition of concerted practice; Even if a clear agreement of will cannot be demonstrated, the establishment of a coordination between the parties that replaces individual decision-making mechanisms is also included in the scope of the article.

Therefore, in order to determine that competition is prevented through coordination between the undertakings, the existence of a tangible plan that has been implemented is not required in every case. Direct or indirect communications of the undertakings aimed at influencing the behavior of their competitors in the market or providing information to their competitors about the decisions they will and/or may take in the market in the future and thus eliminating the uncertainty arising from competition are considered within the scope of concerted practice.[2]

Although the definition of concerted action is not included in the Law on the Protection of Competition, concerted actions are defined in the justification of Article 4 of the Law as; ‘Even if the existence of an agreement between undertakings cannot be determined, direct or indirect relations that provide a coordination or practical cooperation between them that replaces their own independent behavior’.

According to the Decision No. 20-46/618-270 of the Competition Board Dated 15.10.2020;

It is seen that the concept of agreement/concerted action is based on the element of “communication” in making it functional within the current legal framework of competition law. Therefore, the basis of agreement/concerted action is direct or indirect communication. The critical importance of communication in revealing agreement/concerted action is based on the acceptance that the fundamental dynamic that triggers competition in the market is the uncertainty experienced between undertakings regarding how each other will behave. Therefore, it can be concluded that if the uncertainty regarding the future behaviors of the enterprises decreases with the communication or practices and behaviors that provide communication between the enterprises, the enterprise behavior will not be independent but coordinated, and such behavior violates Article 4 of Law No. 4054. In this context, especially when communications containing information regarding strategic data sensitive to competition such as price, supply quantity, sales strategy, cost are presented unilaterally and without reason, they can be considered as a violation of competition. Because for an enterprise that knows that its competitors will increase or keep their prices constant, the uncertainty regarding the future decreases, pricing decisions are shaped according to this information, and this means that the enterprise does not make decisions independently of its competitors in terms of competition law.

The Law also does not include the conditions for an action to be considered as a concerted action. The decisions of the Competition Board are guiding in this regard.

When the decisions of the Competition Board are examined, in order for an action to be considered as a concerted action, first of all, there must be two or more enterprises. Secondly, there must be a conscious parallelism between the actions of the enterprises in question. The parallel actions of the enterprises in question must be of a nature that cannot be explained by economic and rational reasons. Finally, the concerted actions of the enterprises that cannot be explained by economic and rational reasons must cause the prevention or restriction of competition. If all of these conditions are present at the same time, it will be assumed that competition has been prevented unlawfully. Since agreements regarding actions that prevent competition are mostly made secretly, it is very difficult to prove their existence. For this reason, the Law on the Protection of Competition has accepted the presumption that the enterprises are engaged in concerted action in the presence of the situations specified in the third paragraph of Article 4. Thus, the burden of proving that they are not engaged in concerted action has been shifted to the relevant enterprises and it is aimed to prevent the Law from becoming inoperative due to the difficulty of proof.

REFERENCE

Cengiz, D., & HELVACI, M. (2006). TÜRK REKABET HUKUKUNDA UYUMLU EYLEM VE BU EYLEMİN HUKUKİ SONUÇLARI.

Competition Board Decision No. 22-19/310-135, Dated 25.04.2022

Competition Board Decision No. 20-46/618-270, Dated 15.10.2020

Law on the Protection of Competition and Related Legislation

[1] Cengiz, D., & HELVACI, M. (2006). TÜRK REKABET HUKUKUNDA UYUMLU EYLEM VE BU EYLEMİN HUKUKİ SONUÇLARI.

[2] Competition Board Decision No. 22-19/310-135, Dated 25.04.2022