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the period of the infringement or the repetition of the violation in deter-
mining the fine.
In other words, Article 17/2 of the Faults Act does not refer to per-
sons involved in competition infringement. Thus, the reference made
in the Regulation Project on Fines does not have any grounds in the
Competition Act. Within this scope, it would be appropriate to amend
this reference and to replace Article 14 of the Faults Act by Article 17
of the Faults Act.
Managers and Employees of Undertakings or Associations of
Undertakings
The Regulation on Fines states that fines should be imposed on
“
each of the managers and employees of the undertaking who were
detected to have had a decisive influence on the cartel
”. However, the
Regulation on Fines does not define the notion of “decisive influence”.
This deficiency was remedied under the Regulation Project on
Fines since it states that the fine should be imposed on managers and
employees of undertakings “
having a decisive influence in the creation
or application of the competition infringement through acts such as
coordination, organization, encouragement or persuasion
”. It must
stated that this is an appropriate provision.
In addition to the above-stated, mitigating and aggravating cir-
cumstances are not mentioned in the Regulation Project on Fines.
However, mitigating and aggravating circumstances enable the Board
to adequately and appropriately determine the administrative fine to be
imposed. Thus, it would be appropriate that mitigating and aggravating
circumstances are introduced in the Regulation Project on Fines.
When will the Regulation Project on Fines Enter into Force?
The Regulation Project on Fines brings a punitive regulation and
thus, it is subject to the general principles of penal law. One of the prin-
ciples of penal law is the lex mitior principle. Within this scope, the
most favored provision will be applied to investigations opened during
the Regulation on Fines but still not finalized after the Regulation
Project on Fines enters into force.
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