18 April 2010 SUNDAY Official Gazette Issue No.: 27556
COMMUNIQUÉ
From the Presidency of the Competition Authority:
COMMUNIQUÉ ON THE REGULATION OF THE RIGHT OF ACCESS TO THE FILE AND PROTECTION OF TRADE SECRETS
COMMUNIQUÉ NO.: 2010/3
SECTION ONE Purpose, Scope, Basis and Definitions
Purpose ARTICLE 1 – (1) The purpose of this communiqué is to set the procedures and principles concerning the exercise of the right of access to the file by parties; and
procedures and principles, for determining whether the pieces of information
obtained during the implementation of the Act No. 4054 on the Protection of
Competition qualify as trade secret, and for protecting those pieces of information
and documents that have been classified as trade secret.
Scope ARTICLE 2 – (1) This Communiqué shall be applicable for any information and document that have been obtained within the framework of the implementation of the
Act No. 4054, in respect of the right of access to the file and evaluation of trade
secrecy.
Basis ARTICLE 3 – (1) This Communiqué has been drawn up based on the Act No. 4054 Article 44 paragraph two, Article 25 paragraph four and Article 53 paragraph two and
Article 27 subparagraph (f).
Definitions ARTICLE 4 – (1) For the provisions of this Communiqué, the following definitions apply:
(a) File: All information and documents that have been obtained, created or collected
within the scope of the investigation,
(b) Act: Act No. 4054 on the Protection of Competition,
(c) Board: the Competition Board,
(d) Authority: the Competition Authority,
(e) Complainant: Natural or legal persons that have filed an application with the
Authority and have a legitimate interest,
(f) Party: Undertakings or associations of undertakings concerning which an
investigation has been opened or a final examination has been initiated.
SECTION TWO Exercise of the Right of Access to the File
General principles ARTICLE 5 – (1) The right of access to the file shall be granted upon the written requests lodged by the parties within due period, during the investigations conducted
within the scope of the Act. The right of access to the file shall be fulfilled for one
time, as long as no new evidence has been obtained within the scope of the
investigation.
(2) Executives or employees of the undertakings or associations of undertakings who were intended to be given administrative fines pursuant to Article 16 paragraph four
of the Act, shall also be granted the right of access to the file, provided they request
it,
(3) Requests from the complainant and third parties shall be evaluated within the framework of general provisions.
Information and documents that fall under the right of access to the file ARTICLE 6 – (1) Within the scope of the right of access to the file, the parties can have access to any document that has been drawn up and any evidence that has
been obtained by the Authority concerning them, except for intra-Authority
correspondences and those that include trade secrets and other confidential
information about other undertakings, associations of undertakings and persons.
Intra-Authority correspondences ARTICLE 7 – (1) Intra-Authority correspondences are correspondences between units, which have the nature of preparatory acts for the final decisions taken by the
Board.
(2) Information and documents that have been obtained within the framework of Article 6 paragraph three and Article 9 paragraph three of the Regulation on Active
Cooperation for Detecting Cartels, as well as correspondences between the Authority
and those from whom information was obtained such as other public institutions,
professional organizations that have the nature of public institution or natural and
legal persons in the private sector, are accepted as internal correspondence.
Period during which the right of access to the file can be exercised � ARTICLE 8 – (1) Parties that have been notified that an investigation was initiated concerning them can request that they be given a copy of any document drawn up,
and if possible, of any evidence obtained by the Authority in relation to them.
(2) For the investigation to be conducted in a proper and secure fashion and for preempting the likely threat of obscuring of evidence, requests for access to the file
prior to the notification of the investigation report can be deferred considering the
specifics of the concrete incident and providing the legal grounds. In case of
deferment, the request for access to the file shall be satisfied within a reasonable
period starting from the notification of the investigation report.
(3) Finally, the parties can file a request for access to the file until the termination of the last written plea period granted to them.
Evaluation of the requests for access to the file ARTICLE 9 – (1) Requests for access to the file shall be evaluated by the investigation committee. In case the request is accepted, the method and timing of
access to the file and the other points regarding access to the file shall be notified to
the submitter of the request in written.
(2) If the investigation committee is convinced that the request is not acceptable, the decision concerning the request shall be taken by the Board. In case the request for
access to the file is denied, the reason thereof shall be notified to the submitter of the
request.
Fulfillment of the right of access to the file ARTICLE 10 – (1) The right of access to the file can be fulfilled by giving or sending the photocopies or electronic copies of the documents that exist in the file and have
been rendered accessible, considering also the request of the concerned.
(2) Pieces of information that have been obtained within the framework of Article 6 paragraph three and Article 9 paragraph three of the Regulation on Active
Cooperation for Detecting Cartels, as well as other intra-Authority correspondences
that have the nature of exculpatory or accusatory evidence can be examined at the
headquarters of the Authority.
(3) The nature and number of pages of the documents that are to be given to the parties within the scope of the right of access to the file shall be recorded in writing
as minutes or as a letter to be sent to the parties.
(4) For the information and documents provided within the scope of the right of access to the file, the submitter of the request can be charged a fee amounting to the
cost required by the access.
Usage of information and documents accessed through the right of access to the file ARTICLE 11 – (1) Information or documents that have been obtained within the scope of the right of access to the file can only be used, in relation to the file opened
to access, for pleas to be made within the scope of the Act No. 4054 and for seeking
administrative judicial review.
SECTION THREE Determination of Trade Secrets and Maintenance of their Secrecy
General principles ARTICLE 12 – (1) Trade secret refers to any information and document relating to the field of activity of undertakings, that undertakings have the freedom to keep
secret, that is known to and can be obtained by only a certain and restricted group,
and that is likely to result in serious damage to the undertaking concerned when
disclosed to third persons, especially competitors, and to public.
(2) Depending on the characteristics of the incident and the undertaking, information and documents such as the internal institutional structure and organization of
undertakings, their financial, economic, credit and cash position, research and
development activities, operational strategy, raw material resources, technical
information related to production and manufacturing, pricing policies, marketing
tactics and costs, market shares, wholesale and retail customer potential and
networks, contractual connections that are subject to or not subject to authorization,
can be accepted as trade secret.
(3) Information and documents relating to contracts, agreements, settlements and actions that are in violation of the competition law legislation, even if their disclosure
is likely to result in damage to the undertaking concerned or its competitors, shall not
be considered trade secret.
(4) Information that has been published, made public, or included in official registers or balance sheets as well as annual reports, together with information that has lost its
trade significance due to causes such as the fact that it is five years old or more, may
not be deemed trade secret.
Trade secrecy statement by undertakings ARTICLE 13 – (1) Determination of whether information and documents that enter into the records of the Authority include trade secret, and the justification thereof, is
essentially the responsibility of the undertakings to which the secret belongs.
(2) In their secrecy claims, undertakings shall notify the Authority, in written, of; a) what the information and documents that include trade secret are,
b) the grounds that attest to the trade secrecy of these pieces of information and
documents,
c) those versions of documents that do not include trade secret.
(3) Trade secrecy evaluation of the information and documents, copies of which have been obtained from undertakings during on-the-spot inspections carried out under
Article 15 of the Act, shall be sent by the undertakings to the Authority within the
period determined by the professional staff in charge.
(4) Where it deems necessary and by allowing time, the Authority can ask for detailed explanation from the undertakings with regard to their secrecy claims.
(5) Undertakings filing a claim of secrecy shall state, one by one, the trade secrets included in the documents concerned. Statements to the effect that the documents
about which secrecy claims have been filed have the nature of trade secret as a
whole shall not be accepted.
(6) Undertakings can file secrecy claims regarding only those trade secrets that have been obtained from them or that relate to them.
Determination of trade secrets ARTICLE 14 – (1) Where undertakings do not make secrecy claims, the information and documents concerned are deemed not to include trade secret. However, for
possible trade secrets that might be included in information and documents, the
Authority can ask the undertakings for an evaluation, by allowing time, or make an ex
officio evaluation.
(2) Where deemed necessary, undertakings can be called to the Authority and asked to screen the documents obtained from them and related to them, for trade secrets.
(3) Undertakings that have not made trade secrecy evaluation despite the request of the Authority cannot file trade secrecy claims.
Protection of trade secrets
ARTICLE 15 – (1) If the Authority accepts claims that are related to the confidentiality of trade secrecy, it shall not disclose them.
(2) The Authority may not take into account secrecy claims related to information and documents that are indispensable to be used as evidence for proving the
infringement of competition. In such cases, the Authority can disclose such
information and documents that have the nature of trade secret, respecting the
balance between public interest and private interest and in accordance with the
proportionality criterion.
(3) In Board decisions, trade secrets that are not indispensable for proving the infringement, cannot be disclosed merely for the purpose of strengthening the
justification. However, depending on the nature of the information, methods such as
giving approximate values or ranges can be adopted.
(4) Board members and other staff of the Authority cannot disclose or use, in favor of themselves or others, the confidential information related to the Authority, and trade
secrets of undertakings or associations of undertakings that they learned about
during the implementation of this Act, even if they have left their office.
SECTION FOUR Final Provisions
Application by comparison ARTICLE 16 – (1) Provisions included in this Communiqué in relation to the right of access to the file shall be applicable, by comparison, to merger and acquisition
transactions that the Board put under final investigation and to withdrawal of
exemption, to the extent that their nature allows.
(2) Provisions included in this Communiqué in relation to trade secrets shall be applicable, by comparison, to other confidential information that does not have the
nature of trade secret but is likely to result in significant damage to the parties
concerned or third parties when disclosed, to the extent that their nature allows.
Current investigations TEMPORARY ARTICLE 1 – (1) This Communiqué shall not apply to investigations that were decided to be conducted before its entry into force.
Enforcement ARTICLE 17 – (1) This Communiqué shall enter into force on the date of its publication.
Execution ARTICLE 18 – (1) The provisions of this Communiqué shall be executed by the President of the Competition Authority.
GENERAL PREAMBLE TO THE COMMUNIQUÉ ON THE REGULATION OF THE RIGHT OF ACCESS TO THE FILE AND PROTECTION OF TRADE SECRETS
(1) The right of access to the file, which is vested by Article 44 of the Act No. 4054 on
the Protection of Competition, is one of the procedural safeguards that contributes to
a more effective exercise of the right of defense. Before the Competition Boards
takes its final decision, it allows parties to access the file that was drawn up by the
Competition Authority concerning them, in order to ensure that they are able to
exercise their right of defense fully. The right of access to the file must be exercised
in a way both to allow the right of defense to be exercised duly and to not prevent an
effective implementation of the Act.
(2) On the other hand, many pieces of information and documents that are
confidential and have the nature of trade secret, concerning the undertakings,
associations of undertakings and persons addressed by the implementation of the
Act, enter into the records of the Authority and are learned by the employees of the
Authority. Articles 25 and 53 of the Act stipulate that trade secrets and confidential
information must not be disclosed. However, it is deemed beneficial to explain, in
detail, the procedures and principles that relate to how trade secrets and other
confidential information will be evaluated.
(3) The purpose of this Communiqué is to regulate the right of access to the file
vested in the Act No. 4054 and to set the procedures and principles for determining
and maintaining the confidentiality of trade secrets included in information and
documents that enter into the records of the Authority. Within this framework, the
Communiqué is made up of two parts: The procedures and principles relating to the
exercise of the right of access to the file are provided in the first part, whereas those
relating to the determination and protection of trade secrets are provided in the
second part.
(4) The right of access to the file and the right of access to information which is
regulated under the Act No. 4982 on the Right of Access to Information, have
differences in terms of their purpose and scope. This Communiqué solely
regulates the right of access to the file that is within the scope of the right of defense
vested by the Act No. 4054. In this respect, issues that do not fall in the scope of the
Communiqué are subject to the provisions of the Act No. 4982 and other relevant
legislation.
(5) Bearing in mind the above explanations, the Competition Board decided that this
Communiqué shall be published.