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anti-competitive agreement contrary to Article 4 of the Competition Act,
which dismantles the free market professedly.
Exemption Evaluation
The Board determined that the “gentleman’s agreement” concluded
among banks cannot benefit from individual exemption since none of the
conditions laid down under Article 5 of the Competition Act is fulfilled.
As a matter of fact, the “gentleman’s agreement” only procures financial
benefits to banks, which mitigates several costs such as transaction costs
arising during the tender process.
Additionally, the Board also stated that this agreement does not
procure any advantages to the consumers and that the competition
restriction resulting from this agreement is not proportional. Indeed, the
banks compensate or minimize their damages through high penal clauses
set forth in their protocols.
Prescription Period Evaluation
The Board determined that both Pamukbank and Halkbank took part
to the act subject to investigation between 2001 – 2002 but could not
find any document presenting that they continued to be part of this act
between 2002 – 2005. For that reason, the Board analyzed the prescription
period and decided, in line with the
“lex mitior”
rule which foresees
that in penal law, provisions in favor of the suspected shall be applied,
that the prescription period of 5 years set forth in the Competition Act
shall be taken into account in lieu of the prescription period of 8 years
stated in the Misdemeanor Law No. 5237. Thus, the Competition Board,
by considering that the prescription period has ended, concluded that
Pamukbank and Halkbank may not be subject to an administrative fine.
Administrative Fine
Pursuant to Article 16 of the Competition Act, parties which infringe
competition rules shall be imposed a fine of one per thousand of their
annual gross revenues acquired by the end of the financial year preceding
Board’s decision. As for Article 5/1 (b) of the Regulation on Fines to
Apply in Cases of Agreements, Concerted Practice and Decisions Limited