The Legal Nature of the Turkish Competition Board’s Written Opinions as per Article 9/3
The first paragraph of article 9 of the Law no. 4054 on the Protection of Competition (the “Law”) entitled “termination of infringement”, renders the Turkish Competition Board (the “TCB”) the power to apply behavioural or structural remedies to the relevant undertaking or association of undertakings to re-establish competition if it determines that there is an infringement of Article 4 (anti-competitive agreements), Article 6 (abuse of dominant position) or Article 7 (breach of obligation to notify mergers and acquisitions) of the Law. As per the third paragraph of the same article, prior to taking such a remedy decision, the TCB shall inform in writing the undertakings or associations of undertakings concerned of its opinions regarding how to terminate the infringement.
As the EU competition law is the source of Turkish competition law, the correspondent of Article 9/3 of the Law No. 4054 should be evaluated in light of the EU regulations. In the EU regulations, the nature of such authority opinions was characterized as a ‘recommendation’ in the former legislation in article 3/3 of the Regulation No. 17/62[1] with title “Termination of infringements” whereas the new provision in article 7/1 of the Council Implementing Regulation No. 1/2003[2] entitled “Finding and termination of infringement” calls for a ‘requirement’ on the undertaking. Although both provisions are somewhat parallel to Article 9/3 of the Law No. 4054, the wording of Turkish provisions is closer to the previous EU provision which is akin to a recommendation more than a requirement. However, the TCB’s implementation of this provision is closer to the new EU provision.
In Turkey, the legal nature of 9/3 decisions are the subject of a long lasting discussion as, according to Turkish administrative procedure law, only “final administrative acts” of administrative bodies may be subject to administrative courts’ review and that decisions which do not have such nature cannot be made subject to judicial reviews. Indeed, in subparagraph (d) of the second paragraph of Article 14 of the Administrative Procedure Law No. 2577, it is regulated that the administrative act must be final and enforceable in order for the administrative act to be the subject of an action for annulment. In this respect, the fact that the administrative act is final and enforceable is a prerequisite by law in terms of being subject to an action for annulment. In one of its decisions[3], the Council of State stated that “It is a renown administrative law rule that a decision should not only be an administrative decision, but also a final and enforceable decision in order to be subject to an action for annulment.”. The purpose of a final and enforceable decision is that the decision has been given by a competent authority and can be executed ex officio.
The majority of scholars and judicial decisions take the stand that the 9/3 opinions of the TCB cannot be the subject of administrative lawsuits, since such decisions do not bring a direct sanction over the undertaking. Indeed, the provision mentioned above in the Law No. 2577 and several Council of State decisions provide that, it should not be possible for the opinions of the TCB, which do not yield any judgment or result, to be subject to an action for annulment, and it should be accepted that the only exception to this is the “threat of sanctions”. On the other hand, the opposing doctrine, which is also backed by certain recent judicial decisions, defend that 9/3 opinions are direct threats of sanctions and if the relevant undertaking does not oblige with the so called ‘recommendation’ of the TCB, it is likely that the undertaking will face a sanction.
Several judicial bodies have evaluated whether the written opinions issued by the TCB to undertakings or associations of undertakings are in the nature of a “final act” established by an administrative body and, whether those decisions are subject to administrative judicial review. The TCB’s Eye Movement Desensitization and Reprocessing Research, Development and Implementation Association (“EMDR Association”) decision is one of the recent cases which has been the core of this discussion.
The TCB’s 9/3 Opinion on the EMDR Association
In its decision no. 16-17/284-127 dated 18.05.2016, the TCB conducted a preliminary inquiry over the actions of the EMDR Association for the allegation that the decisions, which were taken by the relevant association of undertakings and considered to be exclusionary, obstructed the activities of a psychology consultancy clinic (Çözüm Odakli Psikolojik Danismanlik Hizmetleri Ltd. Sti.) in the EMDR training market and a training company (Davranis Bilgi Egitim Arastirma ve Psikolojik Danisma Hizmetleri Ltd. Sti.), which thus allegedly came to a dominant position, abused its dominant position through tying practices. [4] At the end of its examination, the TCB decided to assign the Presidency of the Turkish Competition Authority (the “TCA”) to issue a written opinion to the EMDR Association under Article 9/3 to cease the activities that obstructed the activities of the undertakings active in the EMDR trainings.
It was stated in the decision that, in trainings to be given by foreign trainers of EMDR Europe abroad it is necessary to meet objective criteria such as the quality of the training, required qualifications of participants, required contents of the training programme, etc. in terms of approval/non-approval of the request. On the other hand, since activities such as seminars, workshops etc. are not within the scope of the mentioned rule of EMDR Europe, those activities of the applicant should not be obstructed.
The Judicial Process
The EMDR Association, to which a written opinion was issued, commenced a judicial proceeding against the TCA and requested the annulment of the administrative act of issuance of a written opinion established under Article 9/3 by stating that it was unlawful.[5]
The 3rd Administrative Court of Ankara, which heard the lawsuit, concluded that the finding that the EMDR Association failed to rely upon objective criteria in the application of the rule concerning foreign trainers and the association’s practices might indeed obstruct the activities in the EMDR training market was rightful; and thus, dismissed the lawsuit on 26.12.2018.[6]
Thereupon, the EMDR Association filed a first-degree appeal against the decision of the court of first instance, and the 8th Administrative Law Chamber of the Regional Administrative Court of Ankara revoked the first instance court due to a technical matter (i.e. pendency) and did not address the essence of the legal nature of 9/3 opinions.[7]
After a few rounds of back and forth on that issue[8], the high administrative court, the 13th Chamber of the Council of State examined the file and decided on 10.03.2022 to accept the EMDR Association’s appeal and reverse the decision of the Regional Administrative Court on the grounds that the TCB’s act no. 5694 dated 10.05.2017 in dispute on the issuance of written opinion as sent by the Presidency of the TCA was an executive act; that, in addition, such opinion contained an express threat of sanction in terms of the plaintiff and, from this aspect, was in the nature of a final act to be executed and that the TCB’s decision no. 17-26/396-175 dated 09.08.2017[9] on the dismissal of the plaintiff’s application for the annulment of the 9/3 opinion was also in the nature of an executive act for which an action of annulment could be initiated.[10]
Thus, the file was re-addressed by the regional court but, the 8th Administrative Law Chamber of the Regional Administrative Court of Ankara did not abide by the above-stated decision of the 13th Chamber of the Council of State; and insisted that the TCB’s act of request for written opinion under 9/3 of the Law no. 4054 and the dismissal of the request for the annulment of such act was not of an executive nature, but of an informative and warning nature; and decided on 30.11.2022 to accept the TCA’s first-degree appeal in a way to allow application to the second-degree appeal before the Plenary Session of Administrative Law Chambers.[11]
Conclusion
The Council of State has until today passed both decisions ruling that administrative judicial proceedings can be initiated against the TCB’s opinions and decisions ruling on the contrary. From this point of view, it cannot be said that the Council of State makes uniformed decisions while making the legal qualification of the TCB’s 9/3 opinions. Indeed, in several decisions[12] [13] of the 13th Chamber of the Council of State, it has been evaluated that the 9/3 opinions conveyed to the undertaking by the TCB are not final acts, but in the decision of the Council of State analysed in our article, an opposite approach has been adopted[14] [15].
It is not possible to foresee the approach of the Plenary Session of Administrative Law Chambers towards the matter in dispute, considering that, under its decision dated 12.06.2013, the Plenary Session of Administrative Law Chambers had previously concluded that the decision of approval of the 13th Chamber of the Council of State on the decision of the court of first instance ruling that no administrative proceeding can be initiated against written opinions issued by the TCB[16].
[1] EEC Council: Regulation No 17: First Regulation implementing Articles 85 and 86 of the Treaty (https://eur-lex.europa.eu/eli/reg/1962/17/oj)
[2] Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (Text with EEA relevance)Text with EEA relevance (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02003R0001-20090701) – This Regulation was abrogated the Regulation No. 17/62.
[3] The Decision Dated 29.04.1992 with File No. 1988/3449 and Decision No. 1992/1277 of the 5th Chamber of the Council of State
[4] The TCB’s decision no. 16-17/284-127 dated 18.05.2016 (https://www.rekabet.gov.tr/Karar?kararId=53f364c0-762d-4c6a-942c-a626ea5b27ba).
[5] The request and scope of EMDR Association has been simplified here for the sake of keeping this information note compact. Please note that the actual judicial process contains requests and evaluations that indirectly relevant to the legal nature of 9/3 opinions.
[6] The Decision Dated 26.12.2018 with File No. 2017/2958 and Decision No. 2018/2591 of the 3rd Administrative Court of Ankara (https://www.rekabet.gov.tr/Safahat?safahatId=eb0fa5fb-9505-4449-ae19-e48f2d9c2fa8)
[7] The Decision Dated 18.12.2019 with File No. 2019/1602 and Decision No. 2019/2858 of the 8th Regional Administrative Court of Ankara (https://www.rekabet.gov.tr/Safahat?safahatId=b4ebdb79-a426-4ee9-aca3-ab7bac395d5e)
[8] The Decision Dated 27.10.2020 with File No. 2020/1059 and Decision No. 2020/2043 of the 3rd Administrative Court of Ankara (https://www.rekabet.gov.tr/Safahat?safahatId=de6dd58d-6813-4795-9f96-f45fbf3d0200)
The Decision Dated 21.10.2021 with File No. 2021/288 and Decision No. 2021/1483 of the 8th Regional Administrative Court of Ankara (https://www.rekabet.gov.tr/Safahat?safahatId=da7277cd-9780-4ed1-be21-aac6e8858e7f)
[9] The Turkish Competition Board’s decision no. 17-26/396-175 dated 09.08.2017 (https://www.rekabet.gov.tr/Karar?kararId=8fdbd8b9-fd66-430a-af49-deab89b9c2e9)
[10] The Decision Dated 10.03.2022 with File No. 2021/5356 and Decision No. 2022/951 of the 13th Chamber of the Council of State (https://www.rekabet.gov.tr/Safahat?safahatId=ecf1ae75-510e-4c6a-a16e-fb04a9b1d36a)
[11] The Decision Dated 30.11.2022 with File No. 2022/885 and Decision No. 2022/1410 of the 8th Regional Administrative Court of Ankara (https://www.rekabet.gov.tr/Safahat?safahatId=a769f8d9-3c2a-4410-95eb-fa79ddf84bd1)
[12] The Decision Dated 20.07.2009 with File No. 2009/3565 and Decision No. 2009/8045 of the 13th Chamber of the Council of State (https://www.rekabet.gov.tr/Safahat?safahatId=b843b810-2b6e-4779-90f6-8cf8f7e97cea)
[13] The Decision Dated 12.09.2011 with File No. 2011/2383 and Decision No. 2011/3671 of the 13th Chamber of the Council of State (https://www.rekabet.gov.tr/Safahat?safahatId=0f6c2cd5-f226-4f80-a2d2-1f48f008a436)
[14] The Decision Dated 07.03.2017 with File No. 2016/641 and Decision No. 2017/566 of the 13th Chamber of the Council of State (https://www.rekabet.gov.tr/Safahat?safahatId=7a324a63-7242-4fe2-8f4e-00252be99c10)
[15] The Decision Dated 23.12.2015 with File No. 2015/4129 and Decision No. 2015/4686 of the 13th Chamber of the Council of State (https://www.rekabet.gov.tr/Safahat?safahatId=c684c849-1b64-4d2b-afa4-61e4900d145d)
[16] The Decision Dated 12.06.2013 with File No. 2011/1393 and Decision No. 2013/2324 of the Plenary Session of Administrative Law Chambers (https://www.rekabet.gov.tr/Safahat?safahatId=24120476-24e0-4ab2-aef4-b688cf21852a)
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