Title: LOOKING BACK AND LOOKING AHEAD Organisation of Competition Authorities Turkeys Experience
1LOOKING BACK AND LOOKING AHEADOrganisation of
Competition AuthoritiesTurkeys Experience
- Yasar TEKDEMIR
- (A. Director of International Relations,
Competition Expert) - Turkish Competition Authority
- 19.11.2008/PARIS
EUROPEAN COMPETITION DAYShaping A
Euro-Mediterranean Competition Policy
2Outline
- Overview of Turkish Competition Law and Policy
- Competition Policy and Regional Integration
- Convergence Among MEDA-partners in Competition
Policy Area - Legal Framework,
- Credible Enforcement,
- Institutional Capacity and Principles,
- Competition Culture,
- International Cooperation
- Evaluation and Suggestion
3I-)Overview of Turkeys Competition Policy
- Legislative Framework
- Primary Legislation Act on Protection of
Competition No 4054 (Turkish Competition
Law-TCL) took into force on 13th of December 1994
- Article 167 of Constitution The State will take
all measures to deal with cartels and monopolies - 1/95 Customs Union Decision with the EU Turkey
will introduce a competition law - Secondary Legislation A number of secondary
legislation in the form of Communiqué (block
exemption), guidelines and notices considering
the relevant legislation in the EU.
4I-)Overview of Turkeys Competition Policy
- Institutional Framework
- Turkish Competition Authority (TCA) was
established and began to operate as an
independent agency on 5th of November 1997. - Competition Board Decision-making Body (7
members nominated by different agencies), - Presidency (President, Deputy Chairman, Vice
Presidents), - Service Units (Professional Units and Supporting
Units), - Expert Staff The key human resource in the
enforcement process
5I-)Overview of Turkeys Competition Policy
- Enforcement Experience
- The TCA has had an 11-year experience in the
enforcement of competition law in Turkey. - the TCA conducted a number of cartel and abuse of
dominant position investigations as well as
merger control in cement, ceramic, fertilizer,
cigarette, telecommunication, different food
markets, transportation, media, tv broadcasting
etc. - Competition Advocacy
- Raising awareness of competition by consumers
(the most important ally of competition agencies)
and business community, - Raising awareness of competition by other
Governmental Agencies (Sectoral Regulatory
Agencies, Line Ministries etc.)
6I-)Overview of Turkeys Competition Policy
- International Relations including EU Affairs
- Multilateral Relations (OECD, ICN, UNCTAD, WTO)
- Regional Relations (EU, FTAs, MEDA etc),
- EU has a major impact on Turkeys competition law
and policy due to membership process of Turkey
(Ankara Agreement, Additional Protocol, 1/95
Customs Union Decision) - Turkeys competition law and policy is found as
satisfactory by the European Commission in terms
of legislation, institutional capacity and
credible enforcement - Bilateral Relations (MoUs Korea, Romania,
Bulgaria, Portugal)
7I-)Overview of Turkeys Competition Policy
- Perspective on MEDA (not a substitute for EU
Membership but a Complementary as in the case of
recent EU-ex MEDA partners),
8II-) Competition Policy And Regional Integration
- Competition law and policy is an important corner
stone of a regional integration as in the case of
the European Union - A framework to dismantle anti-competitive
practices (actions by private and public firms
and actions by Governmental Agencies) which could
substitute for Government-erected barriers
(tariffs and non-tariff barriers) - A framework to contribute to social welfare
within the region by - endorsing the development of competition culture
by 1) consumers and business community and 2)
governmental agencies, - forcing/endorsing the firms (private and
state-owned) to be competitive and innovative, - by endorsing all policies that support proper
functioning of free market at competitive
conditions.
9III-) Convergence Among MEDA-partners Competition
Policy Area
- Convergence needed if competition policy is
attached an effective role in regional
integration among partners. - Convergence requires the existence of certain
elements for competition law and policy within
the jurisdictions. - Legal Framework,
- Credible Enforcement
- Institutional Capacity and Principles
- Competition Culture,
- International Cooperation.
101-) Legal Framework2-) Credible Enforcement
- Legal Framework
- Substantive prohibitions (anti-cartel
enforcement, abuse of dominant position and
merger control), - Exemption/Rule of Reason,
- Remedies,
- Sanctions,
- Right to Defense and Access to File
- Leniency and Settlement,
- Deadlines governed by Law,
- Appeal Mechanism,
- Credible Enforcement
- Taking timely decisions,
- Implementing effective fine policy together with
a proper leniency, - Measuring effectiveness and Monitoring Compliance,
113-) Institutional Capacity and Principles1-
Institutional Setting
- A) Independence
- Independent decision-making body,
- To be provided and protected by Law
- To have financial and administrative autonomy,
- B) Financial Resources
- To de granted considering the functions attached,
- To be sufficient for proper enforcement and
advocacy, - To be sufficient for the CA to keep its
independence,
12- C) Effective Organizational Structure
- To be designed considering the sui-generis
circumstances of the country, - To be designed considering the attached functions
(decision-making, strategic planning, cartel
prosecution and other investigations,
evidence-collection (request for info,
dawn-raids, FIT capacity), legal matters
(interpretation, analysis, and appeal stage),
reporting, economic analysis, monitoring,
international relations, relations with other
governmental agencies, competition advocacy,
public relations, press relations, IT, human
resources and administrative and financial
affairs), - Dynamic and Effective organizational structure
free from bureaucracy, - Periodic and Systematic monitoring the
effectiveness and efficiency of the agency
(internal monitoring and external monitoring)
13- D) Human Resources
- High Qualified Expert Staff 111 expert staff
work at the TCA - Choosing high qualified graduates by a proper
examination system, - Provision of in-house training on different
aspects of competition law and economics and
other relevant fields, - A strict period of working as assistant expert
accompanied by Senior Experts, - Sending abroad (mainly UK and US, and recently
Netherland, France, Germany etc) the expert staff
to follow a master degree on law and/or economics
of competition, - Sufficient level of salary to keep the expert
staff highly motivated and available at the
agency, - Sufficient level of supporting Staff
143-) Institutional Capacity and Principles2-
Principles
- General Principles
- Respect for Property Rights,
- Respect for Market Economy,
- Respect for Competition,
- Rule of Law,
- Principles of Competition Agencies
- Timeliness,
- Efficiency and Effectiveness,
- Legality and Transparency,
- Respect for Right to Defense,
- Predictability,
- Accountability,
- Integrity/Credibility,
- Non-Discrimination between Domestic and Foreign,
- Non-Discrimination between Private and
State-owned, - Attaching Special Importance on the issue of
Regulatory Capture, - Planning and Priority Settings
154-) Competition Culture (Competition Advocacy
Role)
- Competition Culture By Consumers and Business
Community - Seminars, Panels and Conferences,
- Booklets,
- Continuous information via internet page,
- Communicating in a timely manner the positive
impact of decisions/practices on Consumers and
Business Community, - Continuous and systematic consultation with
regional governing bodies, consumer associations
and association of undertakings.
- Competition Culture By Governmental Agencies
- Regulatory Impact Assessment and Competition
Assessment Endorsing less anti competitive
regulatory option which serves the same
objective/goal, - Sending Opinions,
- Organizing Seminars,
- Having continuous and systematic consultation
with main Governmental Agencies,
165-) International Cooperation
- Soft Cooperation
- Cooperation which enables the CAs to share
information on theoretical works and practical
experience. - Takes place in UNCTAD, OECD, ICN, WTO (!).
- Takes place via RTAs (multilateral, regional and
bilateral), - MEDA,
- Agency To Agency Agreements.
- Needed to deal with effectively trans-border
violations, which also threaten regional
integration. - Two Forms
- Soft Cooperation
- Hard Cooperation
175-) International Cooperation
- Hard Cooperation
- Means the cooperation which enables CAs to
cooperate in enforcement of actual cases. - Requires CAs to exchange for data and information
about an actual case, to conduct dawn-raids etc. - Takes place rarely in compare to soft cooperation
(OECD, RTAs, ATAs etc). - Leads certain concerns for the requested CAs.
- Hard Cooperation
- Cooperation in enforcement takes place when
enforcing competition law in an actual cases. - Cooperation in Procedural matters, helps
competition agencies to communicate its official
documents to the companies located in the
cooperating jurisdiction.
185-) International Cooperation -Turkeys
Experience-
- Soft Cooperation
- Membership in International Organisations such as
OECD, ICN, UNCTAD and WTO, - Regional Trade Agreements
- The Customs Union Decision 1/95 of the
Association Council of Turkey and EU (MEDA is
another platform which arise from Turkeys
relations with the EU) - FTAS
- Bilateral Cooperation Agreements (MoUs with
Korea, Romania, Bulgaria, Portugal)
195-) International Cooperation -Turkeys
Experience-
- Hard Cooperation
- Turkey had two cases in which it requested for
hard cooperation. - The first one is Seized (Piece) Coal Market Case,
which was partly finalized by the Competition
Board. The second case is glass cartel conducted
against one domestic firm and one foreign firm
established in Greece. - No need to go into details of these cases,
however sharing their implications in terms of
cooperation is important.
205-) International Cooperation -Turkeys
Experience-
- Evaluation
- In terms of cooperation in enforcement (in coal
market case) No step could be taken within the
framework of EFTA Free Trade Agreement in
Switzerland and 1/95 in EU (actually Austria). - In terms of cooperation in procedural aspect (in
both coal market case and glass case) No step
could be taken in communicating officially the
documents to the companies located abroad, - As the practice of the TCA is an administrative
one and no proper international legal framework
was designed for the communication of such
administrative documents in contrary to judicial
issues.
21V-) Evaluation And Suggestions
- 1-) Institutional Capacity and Principles
- Institutional Capacity
- To be independent in order to fulfill its
function properly, - To have a sufficient financial resource to
finance its expenditures as well as to secure its
independence, - To have an institutional setting designed
considering the needs and characteristics of its
country, - The Institutional setting to be based on a
dynamic and effective structure that is free from
bureaucracy, - To have sufficient and well-trained professional
staff as well as not more than necessary
supporting staff, - To periodically measure and check its
effectiveness, - To keep professional staff updated by periodic
training.
22V-) Evaluation And Suggestions
- 1-) Institutional Capacity and Principles
- Principles
- The Competition Authority should observe certain
principles in its enforcement as well as its
relations with all third parties, - These principles should be announced in advance
if possible, - Every action/decision/practice of the Competition
Authority should refer explicitly or implicitly
on these principles
23V-) Evaluation And Suggestions
- 2-) Competition Culture (Competition Advocacy)
- Activities to raise awareness of competition by
consumers and business community (Seminars,
Panels, Conferences, Booklets, Communicating the
impact of decision/practices), - Activities to raise awareness of competition by
other Governmental Agencies (Introduction of
Regulatory Impact Analysis and Competition
Assessment provide a framework in which
competition agencies can strengthen its advocacy
role)
24V-) Evaluation And Suggestions
- 3-) International Cooperation
- Soft Cooperation MEDA partners should first of
all attach importance on soft cooperation among
them as well soft cooperation on other
international platforms, - Hard Cooperation
- With the increasing globalisation and
liberalisation of international trade, national
competition authorities will face the
difficulties that the TCA faced in its cases more
frequently, - MEDA partners should find ways/methods/solutions
to improve hard cooperation in enforcement as
well as procedural aspects.
25Thank You for Your Attention
Contact Info Yasar TEKDEMIR Adress Rekabet
Kurumu (Competition Authority), Bilkent Plaza B3
Blok, Bilkent/ANKARA Tel 90 312 291
4310 E-mail ytekdemir_at_rekabet.gov.tr www.rekabet
.gov.tr