Turkish Competition Authority (“Authority”) has updated the principles governing the determination of administrative fines with the Regulation on Fines to Apply in Cases of Agreements, Concerted Practices and Decisions Limiting Competition, and Abuse of Dominant Position (“Regulation”), published in the Official Gazette No. 32765 on 27 December 2014. The Guidelines on Fines to be Applied in Cases of Agreements, Concerted Practices and Decisions Restricting Competition and Abuse of Dominant Position (“Guidelines”), published on 19 February 2025, aim to increase legal certainty and transparency by providing explanatory provisions on the application of the Regulation.
This article examines the main changes introduced by the Regulation and the Guidelines and assesses their potential impact in practice.
1. Main Changes Introduced by the Regulation
1.1. Repeal of the Previous Regulation
The previously published Regulation on fines (“Repealed Regulation”), published in the Official Gazette No. 27142 on 15 February 2009, has been repealed and replaced by the Regulation. This new framework adopts a more comprehensive approach to assessing the nature of infringements and their impact on competition.
1.2. Expanded Criteria for Assessing Infringements
Under the Repealed Regulation, infringements were assessed on the basis of market scope, nature and time course. However, the Regulation expands the criteria to include geographic markets, relevant product markets, input and output markets, the temporal coherence of the conduct and whether the conduct was unilateral or coordinated.
1.3. Changes in the Calculation of Administrative Fines
The distinction between cartels and other infringements has been removed and the nature and competitive impact of the infringement will now be considered when setting the basic fine. In addition, a graduated increase based on the duration of the infringement will be applied, i.e. fines will increase progressively as the duration of the infringement increases. For example, fines for infringements lasting more than one year will be increased by one fifth, while those lasting more than five years may be increased up to twice the basic rate. In addition, while the mathematical sum of fines for multiple infringements may exceed the 10% limit, the Authority ensures that the total fine does not exceed this limit.
2. Clarifications provided by the Guidelines
The purpose of the Guidelines is to remove uncertainties in the application of the Regulation by providing detailed explanations.
2.1. Assessment of the Duration of the Infringement
The starting date and duration of an infringement will be assessed on a calendar-year basis. For instance, if an infringement begins on 25 October 2025 and ends on 25 October 2026, it will be considered a full year, and the fine rate will be adjusted accordingly.
2.2. Aggravating Factors
In the event that a company has previously committed a competition law violation and subsequently reoffends, the financial penalty may be increased by up to double the base rate. Furthermore, key factors such as leadership in the infringement, coercion of other companies, and failure to cooperate during an investigation will be taken into consideration as aggravating elements. Additionally, continued infringement following an investigation will be considered an aggravating factor not only for cartels but for all types of competition infringements.
2.3. Mitigating Factors
In the event of an infringement being forced upon a company, such as through coercion or threats, this will be considered a mitigating factor, leading to a reduced fine. Similarly, should a company provide assistance during on-site inspections beyond legal obligations, this may also lead to a reduction in penalties. Additionally, foreign sales revenue can be considered as a mitigating factor, unless it grants excessive market power or systematically contributes to anti-competitive behaviour.
3. Expected Practical Implications
3.1. Legal Certainty and Transparency
The Guidelines have been developed to enhance predictability for undertakings by clearly outlining the circumstances under which aggravating or mitigating factors will be applied. This ensures greater transparency in the Competition Board's methodology for calculating administrative fines.
3.2. Impact on Digital Markets
Stricter enforcement is expected against big data monopolies and anti-competitive conduct in digital markets. Similarly, algorithm-based competition violations and other next-generation anti-competitive practices are also expected to face increased scrutiny.
3.3. Recommendations for Companies
It is imperative that risk assessment mechanisms are updated, as undertakings are required to revise their competition compliance programs in light of the Regulation and Guidelines. Furthermore, the development of pre- and post-infringement strategies is essential, as the continuation of anti-competitive behaviour during an investigation may result in significantly higher fines.
Conclusion
The Regulation and Guidelines establish a more systematic and impartial process for the calculation of administrative fines. The assessment of fines now considers the nature, duration and impact of the infringement, as well as the level of cooperation from the undertaking. With greater legal certainty, companies are required to strengthen their compliance processes and adapt their risk management strategies accordingly.
For more information on the new Regulation and its impact on your company or business, please contact your CMS partner or local CMS expert: Dr Döne Yalçın and Arcan Kemahlı.
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