The New Individual Exemption Regime in Competition Law: Concerns and Solution Proposals from the Perspective of Undertaking

Att. Mikail Enes Çuban*

In order not to qualify agreements, concerted practices and decisions of undertakings and associations of undertakings as illegal and prohibited within the scope of Article 4 of the Law No. 4054 on the Protection of Competition [“RKHK”], an individual exemption regime is stipulated in the presence of certain conditions in Article 5 of the RKHK. This individual exemption regime has undergone some changes as a result of Article 1 of Law No. 7246 dated 16.06.2020. Requesting individual exemption from the court, which was not possible for undertakings in accordance with the legislation before the amendment, or objecting to an individual exemption in a court proceeding, became possible within the scope of this amendment.

In accordance with the new individual exemption regime, it has become necessary to discuss possible scenarios in the application of competition law. When we look at these possible scenarios; requesting the determination of individual exemption from the court and the Competition Authority simultaneously or sequentially, the bindingness of the individual exemption decisions given by the institution and the court in terms of each other; in the substantive law evaluations to be made by the courts within the scope of individual exemption objections brought to the agenda before the courts, it is a matter of curiosity how the situation of the well-established case-law of the Turkish Competition Authority of 25 years and more will result in terms of Turkish competition law practice.

Finally, by expressing the new individual exemption regime, the concerns created by these changes are expressed in this study, especially from the perspective of the undertaking. First of all, the necessity of a specialized competition court and the fact that the Competition Authority assumes the duty of expertise, and secondly, the lack of secondary legislation has been presented as solution suggestions in order to eliminate these concerns.

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Keywords: competition law, individual exemption regime, law and economics, legal development

(*) Çuban Law Firm