Legal nature of the decisions of the Competition Board and their judicial review

Competition law is a set of rules that ensure a free and fair competition process, which is acknowledged as one of the most effective tools that ensures the healthy functioning of the markets, the prevention of cartels and monopolization, and thus the protection of consumers and the increase of social welfare in free market economies. Competition law in Turkey is regulated by the Law No. 4054 on the Protection of Competition, enacted in 1994 within the framework of Turkey's European Union accession process; and Turkish Competition Authority has been established as an independent administrative authority responsible for ensuring the implementation of this Law. Since its establishment, decisions of the Competition Authority and their judicial review have an important place in the Turkish administrative law system, due to the wide economic law enforcement powers of the Competition Board, the decision-making body of the Authority, on the regulation and supervision of competition in Turkey. In our current justice system, the actions and decisions of the Competition Board are subject to review by administrative courts, and the breaches of competition rules by persons that give rise to tortious acts and compensation liability are resolved by civil courts. However, since competition law is still a relatively new field that contains unique technical and complex rules, the implementation of which requires economic analysis, the classical administrative judicial review consisting of reviewing the legality of administrative acts in terms of authority, form, subject, reason and purpose remains insufficient. In addition, making private law cases dependent on the decisions to be established by an administrative body, the Competition Board, prevents to a large extent the enforcement of competition rules by private individuals in Turkey. This situation, on the one hand, causes the Competition Board not to act sufficiently diligent and disciplined in taking decisions in accordance with the law, on the other hand, it results in an absence of consistent case law precedents that is necessary for the development of competition law, and a failure to nurture a culture of competition in the society. It is therefore considered that the decisions of the Competition Board would be subjected to a more effective judicial review, and thereby become more qualified and capable of providing better guidance, if the Competition Authority's acts and decisions are reviewed by specialized courts established within the administrative judiciary, where judges with expertise in competition law conduct a full review. Aside from this, it is observed that the approach of the state to the economic system has changed in the process since 1994, when Law No. 4054 was adopted. Especially recently, the increasing intervention of political institutions in the structure and functioning of the regulatory and supervisory boards, which are originally established as independent institutions, has narrowed the Competition Authority's scope of independent action greatly, and led to the use of the Authority as an instrument of direct intervention in the markets. In order to achieve the objectives of competition law set out in the Law, in addition to an effective judicial review, the independence and impartiality of the Competition Authority must be restored, and it must be ensured that the Authority carries out its statutory duties without the threat of political interference.