238 / 521
I think that the new system brought by the Regulation Project on
Fines is appropriate since mitigating and aggravating circumstances
are clearly enumerated in Turkish penal law. In other words, penalties
may not be decreased or increased if not clearly permitted by law (Art.
61/10 of the Turkish Penal Code). Otherwise, the principle of “certain-
ty in crimes and punishments” will not be respected, which may cause
arbitrariness in punishments.
Provision Related to “Repetition”
The Regulation Project on Fines states that the fine will be
increased by up to 100% for each infringement in case a new compe-
tition infringement is realized by the same undertaking within eight
years as of the notification of the justified decision. In other words, the
Regulation Project on Fines sets forth a general repetition provision.
Such provision does not take into consideration the nature of the
repeated infringement. However, it would be more appropriate that the
Regulation Project on Fines foresees a special repetition provision
such that the concept of aggravating circumstances is applied to under-
takings repeating the same infringement. Otherwise, an undertaking,
which has infringed a competition rule may be confronted with a fine
based on aggravated circumstances for a very different type of
infringement.
Novelties Related to Mitigating Circumstances
Contrary to aggravating circumstances, the Regulation Project on
Fines does not provide a limiting enumeration of mitigating circum-
stances. The provision related to mitigating circumstances is in com-
pliance with both Turkish penal law and European Union legislation.
Novelties Related to Minimum and Maximum Limits to Fines
The Regulation on Fines states, contrary to the Competition Act,
that fines to be imposed on undertakings or associations of undertak-
ings should be between 2% and 4%, and those to be imposed on man-
agers and employers should be between 3% and 5%.
This contradiction was completely eliminated from the Regulation
Project on Fines, which foresees, in compliance with the Competition
222
NEWSLETTER 2014