135 / 391
COMP ET I T I ON LAW
121
with the principles of “independence and impartiality” is an obligation
deriving from both the Competition Act and general legal principles.
As acknowledged, the practice of the Competition Board before the
year 2005 was that all the information and the documents as to alleged
violation of the Competition Act were gathered and a report was prepared
by a committee established by the investigating board member and the
other inspectors. Moreover, upon the receipt of the defense of the parties in
response to this report, the committee used to prepare an additional written
opinion and notify this to other board members and the interested parties.
The State Council evaluated this practice and stated that the board
member handling the investigation had previously prepared a report
containing the decision and any proposed sanctions. Therefore, the State
Council is of the opinion that the final verdict must be rendered based
on an objective discussion and evaluation of the issues. In this regard,
the investigating board member’s participation in this meeting violates
the impartiality principle. Consequently, the State Council stated that the
Competition Board decisions given in the manner described above are not
in compliance with the law, and it annulled many decisions for this reason
2
.
Moreover, the State Council specified that this situation is an explicit
violation of the law and accepted many applications for the suspension of
executions on this basis
3
.
Pursuant to the Act Amending Various Provisions of the Act on the
Protection of Competition numbered 5388 published in the Official Gazette
dated 13 July 2005 and numbered 25874, Article 43 of the Competition
Act has been amended. In this way, the practice of the Competition Board
has been brought into compliance with the established precedent of the
State Council.
2 The awards of the State Council 13th Chamber 2005/1703E.-2005/3396K.; 2005/5534E.-
2005/3339K.; 2005/5535E-2005/3340K. sayılı kararları, Danıştay İdari Dava Daireleri
Kurulu’nun 2008/275E.-2010/590K.; 2007/724E.-2010/591K.; 2008/329E.-2010/593K.
sayılı kararları, Danıştay 13.Dairesi’nin 2009/4592E.-2010/5125K.; 2009/4593E.-
2010/5126K.;2010/310E.-2010/5128K.
3 The awards of the State Council Board of Administrative Affairs, Suspension Application No:
2005/65, 2005/75, 2005/130, 2005/131, 2005/163, 2005/165, 2005/166, 2005/167, 2005/170,
2005/271, 2005/272, 2005/278, 2005/281, 2005/305, 2005/307, 2005/324.