Snapshot: implementing a competition compliance programme in Turkey

Compliance programmes

Commitment to competition compliance

How does a company demonstrate its commitment to competition compliance?

A company may demonstrate its commitment to competition compliance through the meaningful and effective implementation of a competition compliance programme (CCP) that contains the following procedures:

• the establishment of regular dawn raid simulations and training sessions for current and future employees;
• drawing up a general checklist for all employees or departments according to their position and workflow;
• reviews and assessments of past and current practices in light of competition rules;
• the appointment of an in-house compliance officer or an external consultant responsible for the implementation of the CCP and allocation of the tasks;
• the receipt of written commitments from employees with regard to the fulfilment of their responsibilities in line with Law No. 4054 on the Protection of Competition (the Competition Law);
• the adoption and implementation of disciplinary actions for employees’ breaches of the Competition Law or the CCP;
• competition law tests to measure the awareness of employees; and
• the execution of an incentive system (eg, a helpline or hotline) that encourages employees to inform the relevant person in charge, and rewards employees who contribute to the detection in advance and prevent a potential violation.

Furthermore, to increase their compliance levels, companies may prefer to design a technological infrastructure enabling them to detect communications that raise competition law concerns. The infrastructure may require a list of keywords that must be designed and updated in line with the structure of the relevant market.

In particular, the undertaking’s management showing that the CCP and compliance have their complete support is a significant factor in developing a culture of compliance among team members.

Risk identification

What are the key features of a compliance programme regarding risk identification?

The CCP helps in identifying risks (legal, financial and reputational) by outlining simple and clear ‘dos and don’ts’ lists for employees and management. Risk identification entails at least the following essential features:

• conducting market research, paying special attention to the recent decisions of the Board of the Turkish Competition Authority (TCA);
• familiarisation with the structure of the markets in which the company operates and the competition law concerns in those markets; and
• keeping track of past and current competition law investigations in Turkey and abroad.

Risk assessment

What are the key features of a compliance programme regarding risk assessment?

A risk assessment process would typically start with a meeting of the companies’ management regarding the identification of risky areas that may be associated with the companies’ practices. The following actions are also significant:

• the enhancement of communications with employees on the risks related to anticompetitive practices;
• a review of companies’ agreements or practices (eg, exclusivities, pricing policies, non-compete obligations, duration and potential impact on the market);
• an assessment of companies’ activities, along with their affiliates’ practices and current and future business channels from the perspective of both the product and the territorial scope;
• categorisation of the identified risks in accordance with the priority level (ie, low, medium or high); and
• the preparation and presentation of a report focusing on the main findings and risk mitigation strategies.

An appointed compliance officer or an established compliance department should monitor and oversee the risk assessment process.

A company’s method of handling findings that are deemed sensitive from a competition law perspective is key to this process as it indicates a company’s devotion to its compliance efforts. The CCP documents published by the TCA encourage businesses to end infringing practices and notify the competent authorities.

Risk mitigation

What are the key features of a compliance programme regarding risk mitigation?

Risk mitigation typically involves monitoring, reporting and training protocols, namely:

• dawn raid simulations, which entail both a review of communications and a brief educational session for employees about how the TCA dawn raids can be dealt with;
• general competition law training, which includes, among other things, sector-specific examples of how competition rules may be encountered in daily practice;
• a CCP report, which consists of a strength, weaknesses, opportunities, and threats analysis; and
• a helpline or hotline through which employees may request advice from a competition law perspective and inform a person in charge of a potential violation.

Employees making written commitments to carry out their activities in compliance with the CCP may also be useful in increasing their awareness.

Furthermore, regular assessment of the compliance level by competition law consultants and updating of the CCP (eg, on the basis of amendments to the applicable laws and developments in the TCA’s approach) are essential. The participation of the company’s competition law consultants in the company’s executive meetings or meetings of the association of which the company concerned is a member, or those including consultants’ evaluations on the agenda of those meetings, will also be beneficial in minimising any risks associated with competition rules.

If the management becomes aware of a potential infringement of the competition rules, it should immediately end the violating practice, comprehensively assess the case and inform the TCA if necessary (a leniency application or full active cooperation with the TCA may be considered for eliminating or minimising the risk of facing a fine).

Compliance programme review

What are the key features of a compliance programme regarding monitoring and review of business practices?

A review encompasses features such as:

• assessing the level of competition law awareness of employees (eg, through monitoring employees’ activities with or without a prior notice); and
• amending the CCP rules and procedures in line with developments in the competition law.

Regular simulations of dawn raids (particularly conducted without notice) by competition law consultants are essential in ensuring employees’ compliance with competition rules and in assessing the established compliance culture.