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Communiqué on Hearings Held vis-à-vis the Competition Board Communiqué No. 2010/2

 COMMUNIQUÉ ON HEARINGS HELD VIS-À-VIS THE COMPETITION BOARD COMMUNIQUÉ NO: 2010/2

SATURDAY, April 24, 2010 Official Gazette Number: 27561 �

COMMUNIQUÉ

From the Presidency of the Competition Authority:

COMMUNIQUÉ ON HEARINGS HELD VIS-À-VIS THE COMPETITION BOARD COMMUNIQUÉ NO: 2010/2

PART ONE Purpose, Scope, Basis and Definitions

Purpose and scope ARTICLE 1 ─ (1) The purpose of this Communiqué is to determine the

procedures and principles related to hearings held vis-à-vis the Competition Board in

accordance with articles 46 and 47 of the Act on the Protection of Competition No.

4054.

(2) This Communiqué shall also be applicable in respect of the other meetings

for receiving oral opinion/information to be held by the Competition Board to the

appropriate extent.

Basis ARTICLE 2 ─ (1) This Communiqué has been issued based on articles 27, 46

and 47 of the Act on the Protection of Competition No. 4054.

Definitions ARTICLE 3 ─ (1) In implementation of this Communiqué; These express the following:

a) Ministry: Ministry of Industry and Trade,

b) Chairman: Chairman of the Competition Board, Deputy Chairman in cases

where the Chairman is not present,

c) Relevant Department: Professional department that conducts the

investigation process in accordance with article 43 of the Act,

d) Means of proof: Every kind of evidence used in proving material cases,

e) Act: The Act on the Protection of Competition No. 4054,

f) Board: Competition Board,

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g) Authority: Competition Authority,

h) Investigation committee: Committee determined by the Board and

comprised of rapporteurs commissioned with conducting an investigation or a final

examination in accordance with articles 43 and 44 of the Act,

i) Investigation phase: Phase that elapses from taking the decision of

investigation until the date of final written defense of those against whom an

investigation is conducted or until the end of this duration,

j) Complainant: Natural or legal persons who have a legitimate interest

among those who apply to the Authority,

k) Party: Those against whom an investigation or a final examination is

conducted,

l) Meeting: Hearing,

m) Third person: Those other than the party and complainant, who are

accepted by the Board to have a direct or an indirect interest link with the subject-

matter of the session concerned.

PART TWO General Principles

Right to oral defense and decision for a meeting ARTICLE 4 ─ (1) Those against whom an investigation or a final examination

is conducted shall have the right to oral defense before the Board. In case the parties

notify in their petitions for defense or reply that they want to use the right to oral

defense, a hearing shall be held. The Board can also decide for holding a hearing

automatically in cases deemed necessary by it.

(2) The Board shall set the date, venue and time of the meeting, and the

duration of application for complainants and third persons who want to attend the

meeting, and this decision shall be announced on the internet page of the Authority.

Time of a meeting and written invitation ARTICLE 5 ─ (1) Hearing shall be held within 30 days at least and 60 days at

most from the end of the investigation phase. Written invitations for the hearing shall

be sent to the parties at least 30 days before the day of the hearing.

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Attendance of complainants, third persons and the Ministry ARTICLE 6 ─ (1) Complainants can attend the meeting in case they make a

written request within the duration determined by the Board. Third persons who want

to attend the meeting can apply, within the same duration, to the Board by a petition

that involves information and documents putting forward their relation of interest with

regard to the subject-matter of the meeting. The decision of the Board as to the

applications in question shall be notified to the persons concerned before the

meeting.

(2) The Board can also invite, upon the request of the investigation committee

or automatically, the other natural and legal persons, whom it deems to be concerned

or from whom it needs to receive information, to the meeting to present their opinion.

(3) In those investigations initiated upon the request of the Ministry, notification

shall also be made to the Ministry in assurance of ensuring attendance to the

meeting.

Representation ARTICLE 7 ─ (1) Just as the parties can personally attend the hearing, they

can also attend through their authorized representatives.

(2) The representative is not required to possess the title of attorney. It is

essential that who shall represent the parties at the meeting be notified to the

Authority until seven days before the meeting at the latest, together with the

documents showing the authority of representation of these persons. In mandatory

cases, the Chairman can also permit hearing those representatives who have not

been notified within this duration. The number of representatives such notified can be

restricted by the Chairmanship on grounds such as the physical facilities of the

meeting venue and more efficient use of the duration.

(3) Just as partners or members of undertakings or associations of

undertakings who do not have a legal personality can attend the meeting separately,

they can also attend by a joint representative.

(4) The provisions of this article shall also be applicable in respect of

complainants and third persons attending the meeting.

Audience ARTICLE 8 ─ (1) Such demands of those who want to attend the hearing as

an audience shall be met to the extent of the physical facilities of the meeting hall

and according to the order of arrival to the hall, on condition that they are present at

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the locality of the meeting at a reasonable period of time before the time of the

meeting.

PART THREE Publicity and Confidential Session

Publicity of the meeting and decision for a confidential session ARTICLE 9 ─ (1) Hearings shall be held publicly. Holding a hearing

confidentially can be decided on grounds of the protection of general ethics and trade

secrets.

(2) Just as the decision for a confidential session can be taken by the Board

on its own initiative, it can also be taken upon the application of the parties in writing.

(3) The parties can notify the Board in writing of their request to make their

oral defense in a confidential session partially or wholly until the end of the duration

as to the presentation of means of proof at the latest. The confidentiality request

made after this duration is made to elapse shall not be accepted.

(4) The parties making a request for confidentiality shall communicate to the

Board seven days before the meeting at the latest the means of proof they shall use

in their oral defense, accompanied by a draft of the presentation to be made by them,

which involves its basic elements. Documents having the nature of confidentiality

shall be marked with the expressions of “they are confidential” or “they involve trade

secrets” expressly and visibly, and together with a copy of these documents that

involves confidentiality, a copy of them that does not involve confidentiality, where

only their sections involving confidentiality have been removed or closed, shall also

be presented to the Board.

(5) The party which makes a request for confidentiality on grounds of

protecting trade secrets shall be obliged, in respect of all information marked, to

explain with their grounds why these should be considered as a trade secret, the

declaration of the trade secrets in question would lead to what kind of a loss as

regards itself and which sections of the presentation are required to be made

confidentially for protecting them.

(6) The Board shall assess and resolve the request for confidentiality prior to

the hearing. The Board can partially or wholly accept or reject this request. The

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grounds of the decision taken by the Board as to this request shall take place in the

final decision.

Practice of a confidential session ARTICLE 10 ─ (1) In a confidential session, all persons other than the party

concerned, the investigation committee and the Authority personnel charged with

regard to the file shall be taken outside the hall.

PART FOUR Means of Proof

Means of proof and notification ARTICLE 11 ─ (1) In the oral defense, the parties can make use of every kind

of evidence and means of proof provided in the Part Two Chapter Eight of the Code

of Civil Procedure.

(2) Seven days before the hearing at the latest, the parties shall be obliged to

notify the Board of the means of proof to be made use of by them in the oral defense.

Those means of proof that have not been notified in due time cannot be made use of.

(3) It is essential that the other documents as to the presentation such as a

text or slide be also notified within the same duration. Otherwise, these documents

shall be duplicated by the party to make the presentation and delivered to the officers

before the meeting starts, to be recorded and provide their distribution to the Board

members and the investigation committee.

(4) The provisions of this article shall also be applicable in respect of

complainants and third persons attending the meeting.

Witness ARTICLE 12 ─ (1) The parties can have witnesses heard for the

enlightenment of certain matters.

(2) The party designating a witness shall present to the Board within the

duration mentioned in article 11 paragraph two a letter that involves the matter about

which it wants a witness to be heard, and together with a list of witnesses wanted to

be heard, an explanation as to the concern of these persons with the matter. Those

persons not notified to the Board duly shall not be heard as a witness. The

responsibility to make witnesses present in the meeting belongs to the parties.

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(3) If the Board reaches the opinion that it obtained, by the testimony of a part

of the witnesses, sufficient degree of information about the issue wanted to be

proved, it can decide not to listen to the rest.

(4) The Board shall hear witnesses separately. Witnesses shall be confronted

when necessary.

Expert opinion ARTICLE 13 ─ (1) The parties can take a scientific opinion from experts of the

matter with regard to the event which is the subject of the file.

(2) The Board, upon request or on its own initiative, can decide for hearing in

the meeting the expert person from whom an opinion has been received.

(3) The party which shall resort to an expert opinion in its defense shall

present to the Board within the duration mentioned in article 11 paragraph two the

expert opinion, accompanied by every kind of data and analysis upon which such

analyses are based if the opinion also involves qualitative analyses.

PART FIVE Issues as to the Execution of the Meeting

Duration of oral defense ARTICLE 14 ─ (1) Hearings shall be completed at five successive sessions at

most, and various meetings held in one day shall be deemed to be one session.

Management of the meeting ARTICLE 15 ─ (1) The Chairman manages hearings. The meeting shall be

held with the attendance of at least five Board members including the Chairman.

(2) The meeting shall start with a public roll call. If none of the parties have

attended the meeting, the Chairman shall terminate the meeting.

(3) Following the roll call, in the first place the floor shall be given to the

investigation committee in order to briefly sum up the content of claims and the file.

After the presentation of the investigation committee, right to have a say shall be

given according to the alphabetical order as regards name/title to complainants, third

persons if any and to the Ministry first and then to the parties respectively. The

Chairman can change this order on his/her own initiative or upon the request of the

parties.

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(4) The Board can hear in the hearing the parties and complainants and third

persons if any separately or jointly.

(5) In the meeting, the Chairman and the Board members can direct questions

to the parties and complainants, third persons, witnesses and expert persons if any,

to explain or complement their words. The last word belongs to the parties.

Order of the meeting ARTICLE 16 ─ (1) The Chairman shall be responsible for the order of the

meeting. The Chairman shall take all the measures required to enable that sessions

be completed in calmness, soundly, impartially and completely.

(2) Speeches shall be delivered within the circle of respect. In case behaviours

that have the nature of hindering a healthy running of the meeting are committed, the

Chairman can warn the persons concerned or directly take them outside the meeting

hall according to what is required by the situation.

Physical infrastructure ARTICLE 17 ─ (1) In case the parties notify at a reasonable period of time

beforehand, special equipment and facilities such as an interpreter, a sign language

interpreter and wheelchair can be ensured by the Authority if deemed necessary.

Record ARTICLE 18 ─ (1) In the meeting hall, there shall be the voice and/or image

recording fittings of the Authority, and the entire meeting shall be recorded.

Adjournment of the meeting ARTICLE 19 ─ (1) The Board can adjourn the holding of the meeting to a later

date in case of an imperative. The adjournment decision shall be announced or a

notice of it shall be given to the parties, it shall be notified to complainants and third

persons if any and to the Ministry and announced from the internet page of the

Authority.

PART SIX Final Provisions

Existing meetings TEMPORARY ARTICLE 1 ─ (1) This Communiqué shall not be applicable to

those hearings decided to be held before its entry into force.

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Entry into Force ARTICLE 20 ─ (1) This Communiqué shall enter into force on the date of its

publication.

Execution ARTICLE 21 ─ (1) The provisions of this Communiqué shall be executed by

the President of the Competition Authority.

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GENERAL GROUNDS FOR THE COMMUNIQUÉ ON HEARINGS HELD VIS-À-VIS THE COMPETITION BOARD

(1) Hearing provided in articles 46 and 47 of the Act on the Protection of

Competition No. 4054 is one of the safeguards related to procedure, which ensures a

more efficient use of the right to defense. Besides the fact that hearing is not

mandatory, if the parties think that they can plead better orally, hearing is held in

case they communicate their request to this direction within due time. Furthermore, in

case the Competition Board deems holding a hearing necessary, it can also

automatically decide for holding a hearing without the existence of the request of the

parties.

(2) In accordance with the Act No. 4054, in the investigation process, the

parties are granted the right to three written pleas, one being at the outset of the

investigation and two being after giving notice of the investigation report, and also

one right to oral defense at the end of the process related to written pleas. In

accordance with articles 46 and 47 of the Act, hearing is obliged to be completed

within certain durations from the end of the investigation phase, and it has been

limited to five consecutive sessions at most. In this regard, the main goal of oral

defense is not the investigation parties’ presenting all of their pleas through this

means, but is actually to enable that among the issues in the written pleas presented

by them beforehand, they also once verbally present before the Competition Board

the essential points they deem important and to which they would like to draw the

attention of the Board and to aid that the Board forms its final decision by hearing the

parties and the others concerned and asking questions when necessary. Within this

framework, it is important for oral defense presentations to focus on important points

and be completed within a reasonable duration.

(3) As required by article 47 of the Act, it is essential for hearings to be held

publicly, and the Board shall be able to decide for holding a hearing confidentially

with a view to protecting general ethics and trade secrets. Along the lines of this

principle, to be able to make a decision for a confidential session, relevant requests

have to be communicated to the Board at a reasonable period of time before the

hearing, together with their grounds. Accepting the request for a confidential session

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or making a decision to this direction on one’s own initiative does not mean that the

entire oral defense shall be made confidentially. For this reason, the duration

allocated for confidential sessions cannot be used contrarily to the purpose and with

an intention of circumventing the principle of publicity.

(4) Other than the foregoing issues, in article 47 of the Act, it is provided that

the parties concerned can make use of every kind of evidence provided in Part Two

Chapter Eight of the Code of Civil Procedure in the oral defense, they are obliged to

notify to the Board the means of proof they shall use in the oral defense seven days

before the hearing at the latest, and those persons who have a direct or indirect

interest can also attend the hearing. With the Communiqué herein, it has been aimed

to explain in further detail the procedures and principles related to these issues.

(5) The Competition Board, having regard to the foregoing statements, setting

out from the principles of efficiency, transparency and legal certainty, has issued this

Communiqué concerning the procedures and principles related to hearings, in order

to provide that the parties can use their rights fully and efficiently in relation to

hearings, set and declare how the attendance of the parties, complainants and the

other interest holders and how confidentiality practices shall be and eliminate

problems that may be encountered in practice.

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