Providing False or Misleading Information to the Turkish Competition Authority
Introduction
The Competition Board (“Board”) has broad powers to request information from undertakings. The Board’s authority to request information arises from Article 14 of the Law No. 4054 on the Protection of Competition (“Law No. 4054”). Under the relevant provision, the Board may request any information it deems necessary from all public institutions and organizations, undertakings, and associations of undertakings while performing the duties assigned to it by Law No. 4054. In this context, undertakings must provide the requested information within the period determined by the Board. Otherwise, various sanctions, including administrative fines, may be imposed.
It is a common practice for the Board to request information from undertakings within the scope of its authority to request information. The information requested by the Board must be provided timely and accurately. This article explains the basic regulations regarding requests for information and documents, discusses two recent Board decisions regarding submitting false or misleading information to the Competition Authority (“Authority”), and provides some practical considerations.
General Framework for Information and Document Requests
Information requests ensure that the information needed to fulfill the duties assigned to competition authorities by the legislation is obtained from the addressees and that the allegations subject to the file are evaluated entirely and accurately; therefore, the concrete case is clarified and information asymmetry is eliminated. The information obtained is essential in making supportive or rebuttal determinations regarding the matters subject to investigation[1] .
The Board’s practice reveals that it may request information and documents from undertakings during pre-investigation and investigation processes, in the evaluation of mergers and acquisitions, within the scope of exemption and negative clearance applications, and the framework of sectoral inquiries conducted by the Board.
The Board may request the information and documents it deems necessary within the scope of its authority to request information from undertakings through various methods. In practice, the Board’s requests for information and documents are usually communicated to undertakings or their representatives through official letters. However, it is also possible for the Authority experts to ask the relevant officials various questions via e-mail or phone, without submitting a formal information request letter. In addition, within the scope of on-site inspections conducted at undertakings, it is possible for the Authority experts to verbally ask various questions to undertake officials or to request information and documents via on-site inspection minutes.
Information and document requests specify the deadline for undertakings to submit the requested information to the Authority. However, for various reasons, it may not be possible for undertakings to prepare and submit the requested information to the attention of the Authority within the specified period. In these cases, undertakings may request additional time from the Authority’s experts to submit the responses. When submitting a request for a time extension, it is important to explain the reasons why the responses cannot be submitted within the specified period. The Authority’s experts evaluate the justifications provided by the undertakings and may decide to grant a reasonable extension of time if they find the extension request appropriate. In this case, the responses must be prepared and submitted to the Authority by the new date specified.
In case of violation of Article 14 of Law No. 4054, which regulates the Board’s authority to request information, administrative fines regulated in Articles 16 and 17 of Law No. 4054 shall be applied. In this context, Article 16(1)(a) of Law No. 4054 regulates providing false or misleading information or documents in exemption and negative clearance applications and applications for authorization for mergers and acquisitions, and Article 16(1)(c) stipulates the cases for providing incomplete, false or misleading information or documents, or failure to provide information or documents within the specified period or at all. In the cases above, an administrative fine of one-thousandth of the turnover of the undertaking concerned shall be imposed. Article 17(1)(c) of Law No. 4054 regulates that if the requested information or document is not provided within the prescribed period, the relevant undertaking shall be imposed a relative administrative fine of five per ten thousand of its turnover for each day.
In cases where incomplete, false, or misleading information is submitted to the information request or no information is submitted at all, consequences other than administrative fines may arise. In merger and acquisition transactions, the notification is deemed to have been made following the submission of all information requested in the notification form and requested by the Board completely and accurately[2] . In addition, if it is determined that false or misleading information has been submitted to the Authority within the scope of mergers and acquisitions authorized by the Board, the clearance decision may be re-examined and even revoked[3]. The same applies to exemption and negative clearance decisions. These decisions based on false or misleading information may be reversed or deemed not to have been taken at all[4].
The Board’s Sahibinden Decision
In the Board’s Sahibinden decision[5] , in the investigation conducted within the scope of the allegation of whether Sahibinden Bilgi Teknolojileri Pazarlama ve Ticaret A.Ş. (“Sahibinden”) abused its dominant position in the real estate, vehicle sales, and rental platform services market through data portability and other means, it is examined whether Sahibinden submitted false or misleading information. In its written defense submitted to the Authority within the scope of the investigation, Sahibinden asserted that there was an error in the package usage rate data subject to economic analysis in the investigation report. In this context, the data presented in another concurrent file on Sahibinden was compared with the data presented in the current file as the data on which the economic analysis was based, concerned the data previously submitted to the Authority by Sahibinden. The Authority’s experts examined whether there has been any interference with the data in question, whether the undertaking has deliberately distorted the actual data, and what the correct data is to be used as the basis for the analysis. As a result of their assessment, the experts determined that the reason for the difference between the data submitted to the Authority is that the data provided by Sahibinden is incorrect. Therefore, the Board decided to impose an administrative fine on Sahibinden for providing false or misleading information or documents to the Authority.
The Board’s UNTAD Decision
In the Board’s UNTAD decision[6], within the scope of the investigation conducted to determine whether Aksaray Unlu Mamülleri Gıda Sanayi ve Ticaret Limited Şirketi (“UNTAD”) violated Article 4 of Law No. 4054 using determining the resale price of its buyers, it was examined whether UNTAD submitted false or misleading information to the Authority, during the pre-investigation stage. During the on-site inspection conducted as part of the pre-investigation, the Authority experts received various draft agreement samples, prepared to be signed with UNTAD’s dealers. As a result of the assessment, it was determined that the relevant agreements contained provisions that may be contrary to competition law. Subsequently, to determine whether the relevant agreements were actually signed, UNTAD and its dealers were requested to provide a copy of all the different types of agreements they have concluded. As a result of the examination of the relevant agreements, it was determined that the provisions that may be against competition, included in the draft agreements obtained during the on-site examinations were not included in the agreements sent to the Authority. Although UNTAD stated in its defense that the agreement sent to the Authority by the undertaking’s chief accountant was an old version of the agreement with deficiencies in its content and signature, the Board decided to impose an administrative fine on UNTAD for providing false or misleading information or documents, since the relevant provisions were not included in the agreements submitted to the Authority by UNTAD.
Conclusion
The Board may request various information and documents from undertakings by exercising its authority to request information to effectively exercise its duties by the provisions of the legislation and to enlighten the cases it examines. It is important to respond to the Board’s information requests in an accurate and timely manner. If incomplete, inaccurate, or misleading information is provided to the Authority or if the requested information is not provided at all, various sanctions can be imposed against the undertakings. The Board’s previous decisions reveal the importance of information and document requests and the Board’s sensitive approach to this issue. In this context, it is essential that the information submitted to the Authority by undertakings is consistent with each other and reflects the truth. In addition, there should not be any contradiction between the information submitted to the Authority by the same undertaking in the past and the information currently submitted, and if there are any differences among the information submitted, the reasons for this should be explained. Finally, undertakings should be careful to submit the requested information to the Authority in due time.
- Şarbak, Elif Nurdan: AB ve Türk Rekabet Hukukunda Bilgi İsteme Yetkisi ve Buna İlişkin Yaptırımlar, Expertise Thesis, Turkish Competition Authority, Ankara 2022, p.3.
- Communiqué No. 2010/4 Concerning Mergers and Acquisitions Calling for the Authorization of the Competition Board (“Communiqué No. 2010/4”), art.11.
- Communiqué No. 2010/4, art. 16(1)(a).
- Law No. 4054, art.13.
- The Board’s decision dated 17.08.2023 and numbered 23-39/756-265.
- The Board’s decision dated 17.08.2023 and numbered 23-39/730-251.
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