TÜRKIYE Law and Practice Contributed by: Gönenç Gürkaynak, K Korhan Yıldırım and Görkem Yardım, ELIG Gürkaynak Attorneys-at-Law
TCA are – in principle – open to the public. How - ever, 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 necessary evidence to prove the infringe - ment of competition. 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 disclosure in accordance with the proportionality criterion. 7.4 Co-Operation With Other Jurisdictions The TCA is authorised to contact certain regula - tory 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 Association Council (Decision No 1/95) empow - ers the TCA to notify the EC and request that the Directorate-General for Competition applies relevant measures if the Board believes that transactions realised in EU territory adversely affect competition in Türkiye. This provision grants reciprocal rights and obligations to the parties (EU–Türkiye) and, thus, the EC has the authority to ask the Board to apply the neces - sary measures to restore competition in the rel - evant markets. In addition, the TCA’s research department makes periodical consultations with relevant domestic and foreign institutions and organisa - tions. 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 decisions on interim measures and fines. Third parties can also challenge a Board decision before the competent administrative courts, provided that they have a legitimate 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 automat - ically stay the execution of the Board’s decision. However, at the request of the plaintiff, the court may – by providing its justifications – decide on a stay of execution 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-level appellate court system con - sisting of administrative courts, regional courts and the High State Court.
632 CHAMBERS.COM
Powered by FlippingBook