TÜRKIYE Law and Practice Contributed by: Gönenç Gürkaynak, K Korhan Yıldırım and Görkem Yardım, ELIG Gürkaynak Attorneys-at-Law
tion to the TCA, the existence thereof is no longer a confidential matter. Communiqué No 2010/3 on the Regulation of Right to Access to File and Protection of Commercial Secrets is the main legislation that regulates the protection of commercial information. Pursuant to Communiqué No 2010/3, undertakings must identify and justify infor - mation or documents as commercial secrets. Undertakings are obligated to request confidentiality from the Board in writing, and to justify their reasons for the confidential treatment of the information or documents. The general rule is that if confidentiality is not requested, then the information and documents are accepted as non-confidential. As mentioned in 5.6 Issuance of Decisions , the rea- soned decisions of the Board are published on the website of the TCA once confidential business infor - mation has been removed. Moreover, the Board and personnel of the TCA are bound by a legal obligation not to disclose any trade secrets or confidential infor - mation obtained during the course of their work. In the event that the Board decides to have a hear - ing during the investigation, hearings at the TCA are – in principle – open to the public. However, in order to protect public morality or trade secrets, the Board may decide that the hearing must be held in camera. Article 15 (2) of Communiqué No 2010/3 implies that the TCA may not consider confidentiality requests related to information and documents that are neces - sary evidence to prove the infringement of competi - tion. In such cases, the TCA can disclose information and documents that could be classed as trade secrets – provided it takes into account the balance between public interest and private interest and makes the dis - closure in accordance with the proportionality crite - rion. 7.4 Co-Operation With Other Jurisdictions The TCA is authorised to contact certain regulatory authorities around the world, including the EC, in order to exchange information. Authorities are not obliged to seek the parties’ permission to share information with each other.
Article 43 of Decision No 1/95 of the EC–Türkiye Asso - ciation Council (Decision No 1/95) empowers the TCA to notify the EC and request that the Directorate-Gen - eral for Competition applies relevant measures if the Board believes that transactions realised in EU terri - tory adversely affect competition in Türkiye. This pro - vision grants reciprocal rights and obligations to the parties (EU–Türkiye) and, thus, the EC has the author - ity to ask the Board to apply the necessary measures to restore competition in the relevant markets. In addition, the TCA’s research department under - takes periodic consultations with relevant domestic and foreign institutions and organisations. In the past, the EC has been reluctant to share any evidence or arguments that the TCA had explicitly requested on a limited number of occasions. 8. Appeals and Judicial Review 8.1 Access to Appeal and Judicial Review Parties can appeal the Board’s final decisions before the administrative courts of Ankara, including deci - sions on interim measures and fines. Third parties can also challenge a Board decision before the competent administrative courts, provided that they have a legiti - mate interest. Decisions by the Board are classed as administrative acts and, as such, legal actions against them shall be pursued in accordance with Turkish administrative procedural law. The judicial review comprises both procedural and substantive review. Filing an administrative action does not automatically stay the execution of the Board’s decision. However, at the request of the plaintiff, the court may – by pro - viding its justifications – decide on a stay of execu - tion if the execution of the Board’s decision is highly likely to: • cause serious and irreparable damages; and/or • be against the law (ie, upon showing of a prima facie case). Judicial Review Period Administrative litigation cases are subject to judicial review before the regional courts. This creates a three-
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