Analysis of the administrative fines settled within 4054 numbered Law Regarding The Protection of The Competition in the light of Misdemeanor Law

Competition Board is authorized to impose administrative fines indicated in the 16th and 17th articles of RKHK( Law Regarding the Protection of the Competition) to the enterprises, associations of undertakings, managers or employees of the enterprise or association of undertakings. The administrative fines settled within RKHK are defined under three main titles which are: substantial, procedural and relative administrative fines. Substantial administrative fines shall be imposed in case there is a contract restricting the competition, concerted actions and decisions, abuse of the dominant position and consolidation and acquisitions causing a breach of competition. As for the procedural administrative fines; they are imposed there is misinformation of deceptive information or document in the application, realization of consolidations and acquisitions without authorization while despite the necessity of an authorization for these operations, submittal of deficient, inaccurate or deceptive information in case of information demand or investigation on site, prevention or bedevilment of the investigation on site. Relative administrative fines are imposed per day in case the penal responsibilities or commitments are not fulfilled, prevention or bedevilment of the investigation on site or not providing the requested information or documents within prescribed time. Two regulations are followed for the application of administrative fines: Penal Regulation and Penitence Regulation. RHKH is subject to Misdemeanor Law with respect to general provisions. In this regard the application rules in terms of time and place are important. Furthermore; certain principles which are applicable for the misdemeanor law such as legality principle, personality principle, nonbis in idem principle, principle of being justifiable and providing judicial remedies are applicable for the administrative fines imposed within the scope of RKHK as well. The misdemeanors are committed in two manners: first one is executory and the other one is culpable. There are three types of responsibility reasons: intent, negligence, delinquency. In case the lack of a clear provision in the law; the misdemeanors can be committed intentionally and negligently. Intent related provisions of Turkish Penal Code are applied merely for the misdemeanors committed delinquently. There are two reasons abrogating the liability with respect to the misdemeanors. These are the being under age and having a mental illness. Any administrative fine is not applied for a child who was under fifteen years old when he/she committed the act. The person who is capable of perceiving the sense and outcomes of the related act or whose ability of controlling his/her behaviors concerning that act has significantly weakened shall not have any misdemeanor liability. While imposing administrative fines in accordance with the third clause of RKHK, the Board considers following aspects within the scope of the second clause of the 17th article of the Misdemeanors Law: recurrence and duration of the infringement, dominance of the enterprise or association of the undertakings in the market, its determining effect in the infringement, whether or not it has fulfilled its commitments or assisted the investigation, the extent of the actual or potential damages. RKHK is subject to the Misdemeanor Law with regards to the lapse of time provisions. There are two types of lapses of time in the Misdemeanors Law. One is the laps of time of the investigation while the other one is the lapse of time of fulfillment. Certain processes should be managed in order to enable the Board to reach a verdict of administrative fine. These are: first examination, preliminary survey if appropriate, investigation phases, verbal self-defense meeting and final decision. The enforcement phase of the final decision consists of notice, finalization and collection phases. In case the enterprise, association of undertakings, manager or employees to which an administrative fine sanction is imposed find that verdict illegitimate, they may sue a law suit at the administrative court and demand the nullity of the judgment. The judgment of the administrative court is subject to ordinary and extraordinary legal procedures. Ordinary legal procedures are: objection, appeal, revision of decision. Extraordinary legal procedures are: appeal for the sake of law and new trial. Key Words: Competition board, misdemeanor law, Turkish penal Code, administrative fines, contract restricting the competition, concerted actions and decisions, abuse of the dominant position, consolidation and acquisitions, legality principles, lapse of time, penal regulation, active cooperation, enterprise