e-book2013

155 / 473

NEWSLETTER 2013 142
them. As per this decision, it may be stated that the Council of State
has established a rule of presumption, which foresees that information
exchanges will influence parties’ future behavior34 . Nevertheless, as
also mentioned above, in cases where the market is transparent, and
that information may be easily obtained, and where the information
exchanged is related to general and statistical information, the decision
of the Council of State should be made with caution. Likewise, there
should be a flexible approach on the exchange of information in export
transactions, which do not affect any market in Turkey35 .
Conclusion
The principle criterion considered by the Board is whether an
information exchange will limit undertakings’ capability “to take
individual economic decisions”. However, the Board has not established
uniform and objective conditions which facilitate the determination as to
whether this criterion is met. The Board, in some of its decisions:
• Has prohibited the retroactive exchange of information;
• Has not taken into account the market structure; and
• Has brought a rule of presumption on information exchange
(Council of State).
Within the scope of the aforementioned Board decisions, it can be
observed that information exchanged is de facto restricted. However,
as also mentioned above, information exchanged may sometimes have
positive effects on competition. With this in mind, uniform and objective
conditions should be established which facilitate a determination as
to whether the criterion established by the Board is met. Hence, it is
anticipated that the Guidelines, which have not yet been published, will
shed some light on these subjects and be a proper guide for undertakings.
34 For information about the decision, see footnote 5.
35 See Board decision dated 06.10.2005 and numbered 05-65/928-250,
H7deC+LxB18=&nm=90 (accessed on: 27.03.2013).