On May 3 2012 the Competition Board published its reasoned decision(1) regarding two undertakings active in the sodium sulphate and raw salt sectors. The decision includes information that sheds light on the treatment of leniency applications, as well as on when executives and employees of parties will be considered to have had a determining effect on the creation of the violation.
The board launched its investigation against Otuzbir Kimya ve Sanayi Türk Ltd Sti (OKS) and Sodas Sodyum Sanayi AS at the end of 2010 with the aim of deciphering whether the relevant undertakings had violated Article 4 of the Law on the Protection of Competition (4054) by fixing prices and sharing customers in the sodium sulphate market in Turkey. Additionally, the board merged an investigation against Alkim Alkali Kimya AS, Sodas and OKS in relation to their activities in the raw salt market.
According to the Regulation on Active Cooperation for Discovery of Cartels, the first incumbent undertaking to file an appropriately prepared application for leniency before the investigation report is officially served may benefit from total immunity. Sodas made its leniency application under regulation during the submission of the first written defences before the investigation report was officially served. After the investigations were merged, Alkim (which is part of the same economic entity as Sodas) also made its leniency application. Their applications were accepted by the board under the regulation. Sodas disclosed information on:
- the products that were subjected to the cartel;
- the duration of the cartel;
- the names of the undertakings that had been parties to the cartel arrangement; and
- the timing, place and the attendants of the cartel meetings.
It also offered all the information and documentation in this regard.
Accordingly, the board decided that the relevant undertakings had fixed prices and shared customers for a duration of six years (from September 2005 until April 2011). It therefore imposed administrative monetary fines on OKS and Sodas, and on an executive who was deemed to have had a determining effect on the creation of the violation. As regards to the unprocessed salt market, after assessing the duration of the act and its effects in the market, the board held that it was not required to impose administrative monetary fines.
The board did not grant full immunity to Sodas, but applied a reduction of one-third of the fine to be imposed. The board did not set forth the reason for not granting full immunity, but solely indicated that the amount of the administrative monetary fine was decided by considering the characteristics, efficiency and scheduling of the leniency.
In addition to the undertakings, the general manager of Sodas also applied for leniency and received a 1.5% reduction in the amount of the administrative monetary fine imposed for Sodas for acknowledging the violation and being in active cooperation.
The decision is primarily important as the board decided on a reduction in the fines for Sodas instead of granting full immunity following the application for leniency. The board cited Article 5/1(a) of the regulation, which states that the administrative monetary fine shall be reduced for those undertakings which submit information and documents independent of their competitors by following the preliminary decision of the board but before the delivery of the investigation report, and which do not fall within the scope of the full immunity stipulated under Article 4.
This is the second time in the board's decisional practice where, in addition to the undertakings, an individual has incurred an administrative monetary fine due to his or her heavy involvement in the creation of a competition law violation. The board stated explicitly that phrases stated in the email messages gathered from the parties led it to conclude that the director of OKS and general manager of Sodas had had a determinative impact on the violation.
For further information on this topic please contact Gonenc Gürkaynak at ELIG by telephone (+90 212 327 17 24), fax (+90 212 327 17 25) or email ([email protected]).
Endnotes
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