140 / 516
for the determination of the administrative monetary fine is
the revenue generated from the
“relevant good market in
which the infringement takes place”
. Therefore, the
Regulation on Fines clearly fails to achieve uniformity with
the EU acquis.
Nonetheless, the Board may not fill this legal gap in the
Regulation on Fines pursuant to the EU acquis. The Board
takes the total gross revenue of the undertakings in calcula-
tion of the administrative monetary fine. In addition to the
noncompliance with the EU acquis, this situation constitutes
a violation of the “principle of proportionality” inherent in
criminal law. This way, the undertakings are imposed fines
based on their gross revenue for violations of competition
concerning a very small portion of their revenue. In such an
event, the administrative monetary fine will be dispropor-
tional to the unjustified revenue acquired from the violation
of competition.
Likewise, this provision also contrasts with the principle,
regulated under the Constitution governing the equal treat-
ment to those under the same circumstances. An undertak-
ing, which operates in various business will be subject to a
fine calculated based on its gross revenue rather than the
revenue in the relevant business, while another undertaking,
which may be operating in one particular branch of business
will be subject to fine based on its revenue from that rele-
vant branch of business where it commits the violation of
competition.
It should also be stated that, if this system stipulated under
the Regulation of Fines had accomplished a desirable and
fair purpose in terms of the intended competition policies,
the “total revenue” system under 1998 Guideline would not
have been amended to “the total revenue generated from the
relevant product market” under the 2006 Guideline.
➢
The turnover to be taken into consideration in calculating
the total fine is specified as the revenue
“…generated at the
end of the fiscal year preceding the final decision, or if that
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