The Turkish Competition Board's ("Board") reasoned decision (dated 13.07.2017 and numbered 17-22/352-157) regarding the request to access the case file submitted by Trakya Cam Sanayii A.Ş. ("Trakya Cam") has been published on the official website of the Turkish Competition Authority ("Authority").
The decision concerns the investigation initiated against Trakya Cam through the Board's decision for the purpose of determining whether Trakya Cam had violated Articles 4 and 6 of the Law No. 4054 on the Protection of Competition ("Law No. 4054") through the de facto implementation of its dealership system, which had not been granted with an individual exemption in a previous decision of the Board (dated 02.12.2015 and numbered 15-42/704-258).
Following the official service of the investigation report on May 26, 2017, ("Investigation Report"), Trakya Cam requested access to the case file, pursuant to the Communiqué No. 2010/3 on the Regulation of the Right of Access to the File and the Protection of Trade Secrets ("Communiqué No. 2010/3"). Trakya Cam claimed in its application that, in line with the Law No. 4045 and the Communiqué No. 2010/3, and in order to acquire a full understanding of the claims brought against it so that it could effectively prepare and submit its responses to the findings in the Investigation Report, it needed to gain access to the case file, and thus requested the documents and evidence listed in its application to be delivered via electronic data storage devices.
The first group of documents listed in Trakya Cam's request comprised the following: (i) the application and complaint petitions that had been submitted along with a request for confidentiality, and (ii) the minutes of the telephone conversation conducted with the complainant regarding the relevant applications. In response to this request, the Board emphasized that Article 6 of the Communiqué No. 2010/3 provides that the parties may access any documents or evidence issued by the Authority and which, additionally, concern them directly. Nonetheless, as the applications in question had been issued by parties outside the Authority (i.e., the Authority was not the author of the relevant documents), the Board determined that they did not constitute "in-house" documents. Furthermore, the Board noted that, although the application and complaint petitions formed the basis of the Authority's inspection, they were not utilized as evidence for substantiating any allegations or establishing the guilt or culpability of the investigated undertaking (i.e., Trakya Cam).
In this respect, the Board determined that the relevant documents did not qualify and would not be classified as evidence pertaining to the undertaking in question, and therefore, the application and the complaint documents were found to be outside the scope of Article 6 of the Communiqué No. 2010/3.
Nonetheless, the Board also made reference to its previous precedents (16-12/188-83, 30.03.2016 and 16-17/290-133, 18.05.2016) and stated that access to the application and complaint petitions had previously been granted to the parties in prior cases by way of redacting commercial secrets and confidential information. However, the Board declared that the relevant complaint petitions in those precedent cases did not include requests for confidentiality, contrary to the case at hand. Therefore, the Board ultimately concluded that, while petitions that did not involve confidentiality requests could be revealed to the applicants, Trakya Cam's request for access to the first group of documents should be denied in this case, due to the fact that: (i) all of the complaints submitted in the case at hand included confidentiality requests, and (ii) there were no additional claims or allegations put forth during the telephone conversation in question.
The second group of documents subject to Trakya Cam's request for access to the case file comprised the reports resulting from the on-site inspection conducted at the premises of Trakya Cam's dealers. The Board stated that the unredacted portions of these documents concerning the violation allegations had already been conveyed to Trakya Cam, either as annexes to the investigation notice or as annexes to the Investigation Report itself. Thus, the Board noted that Trakya Cam had been provided with all the means necessary to effectively utilize its right of defense. Furthermore, the Board concluded that the remaining parts of these documents, which (i) were not related to Trakya Cam, (ii) did not include information exonerating or incriminating Trakya Cam, and (iii) included commercial secrets to a significant degree, could not be revealed to Trakya Cam within the scope of the Communiqué No. 2010/3, due to the fact that they were related to the internal communications and operations of the undertakings concerned.
The third group of documents in this case consisted of information and documents submitted by Trakya Cam's dealers, the customers of its dealers, and its former dealers. The Board herein stated that, pursuant to Article 7 of the Communiqué No. 2010/3, the correspondence between the Authority and natural persons or legal entities in the private sector that is undertaken for the purpose of collecting information constitutes the internal correspondence of the Authority, and therefore, the documents requested also constituted the internal correspondence of the Authority.
In this regard, the Board determined and declared that the third group of documents comprised information about the dealership system that Trakya Cam was accused/suspected of using, the undertakings that supplied glass and the amount supplied by each of them, together with data about the regional distribution of sheet glass sales. The Board noted that, within the framework of Article 12 of the Communiqué No. 2010/3, the identities of the undertakings that supplied glass and the amount and regional distribution of sheet glass sales were deemed as commercial secrets. In addition, Article 10 of the Communiqué No. 2010/3 provides that the internal correspondence of the Authority which contains information that could exonerate or incriminate the investigated undertaking may be examined physically at the premises of the Authority. Based on these provisions, the Board ultimately ruled that access to these files—limited to the explanations of the undertakings, by way of redacting commercial secrets and confidential information—could be granted at the premises of the Authority's headquarters, and that the undertaking would not be allowed to make any records or copies of such documents.
This article was first published in Legal Insights Quarterly by ELIG, Attorneys-at-Law in March 2018. A link to the full Legal Insight Quarterly may be found here.
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