INTERIM MEASURES IN COMPETITION LAW

Competition law is designed to protect the healthy functioning of a free market economy and prevent unfair competition. This branch of law deals particularly with important issues affecting the market, such as anti-competitive agreements, abuse of dominant position, and mergers and acquisitions. While swift and effective state intervention against competition violations is crucial, provisional measures play a critical role in minimizing the market impact of these violations.

 

What are temporary measures?

Interim measures are temporary protection orders issued by courts or competent authorities to eliminate or limit the effects of competition violations before the completion of judicial proceedings. Such measures are a quick and effective method used to prevent market distortion or harm to relevant parties in situations where a judicial decision would take a long time.

 

Provisional Measures in Turkish Competition Law

In Turkish competition law, the application of interim measures is regulated by Law No. 4054 on the Protection of Competition. Article 9 of the law grants the Competition Authority the power to apply interim measures. This power can be used in cases where there is a strong suspicion of a violation and competition is at risk of serious harm.

Article 9 of the Competition Law states:
“In cases where there is a possibility that competition will be significantly hindered, distorted, or restricted, the Competition Board may take a decision on interim measures until the investigation is completed.”

According to this article, the Competition Authority's decision to take precautionary measures aims to protect the existing market situation and prevent potential harm. The provisional measure is applied temporarily until a violation is detected, and during this process, efforts are made to halt the competition violation.

 

Conditions for Interim Measures

Certain conditions must be met in order for interim measures to be applied under competition law:

1. Strong Suspicion of Violation: For provisional measures to be applied, there must be strong suspicion of a competition violation. This allows the Board to make a decision based on findings that emerge during the preliminary investigation or inquiry process.
2. Risk of Serious Harm: For a provisional measure to be applicable, there must be a reasonable risk that market actors or consumers will suffer significant harm as long as the infringement continues. This harm may have consequences that are difficult or impossible to reverse.
3. Proportionality: The temporary measure to be applied should be at the minimum level necessary to protect competition. While aiming to protect competition, the measure should not unduly burden the relevant parties.

Types of Interim Measures

The interim measures that can be applied in competition law may vary depending on the type of violation and market conditions. The most frequently applied types of interim measures are as follows:

• Temporary Suspension of Operations: A decision may be made to suspend a specific business activity of the establishment suspected of infringement. This measure can be particularly effective in cases of abuse of dominant position.
• Price Adjustments: Price adjustments can be implemented as a temporary measure against excessive price increases or dumping practices that distort competition in the market.
• Regulation of Contract Terms: Decisions may be made to temporarily modify or suspend specific terms of agreements that lead to anti-competitive practices.
• Market Access Restrictions: Temporarily restricting a company suspected of infringement from accessing certain markets is among the important measures that can be taken to protect competition.

Interim Measures Period

Interim injunctions are generally issued by the Competition Board after a preliminary investigation or inquiry has been initiated. The decision-making process works as follows:

1. Application and Preliminary Review: When a violation is suspected, an application is made to the Competition Authority. Upon application, the Authority conducts a swift preliminary review and decides whether measures are necessary.
2. Board Decision: Following its review, the Competition Board may decide to implement a provisional measure. The Board makes this decision based on the available findings and the potential effects of the violation.
3. Implementation and Duration of the Measure: Once a provisional measure is issued, its implementation is carried out immediately. Measures are generally valid for the duration of the investigation and can be made permanent if a violation is detected. Otherwise, the measures are lifted.

The Importance of Interim Measures

Within the framework of competition law, interim measures are vital for protecting markets and preventing damages resulting from infringements. Especially in large-scale markets, the impact of infringements can be profound, and such measures can prevent the disruption of competition and economic balance.

Interim measures contribute both to the protection of consumer welfare and to the continuation of level playing fields in competition. The timely and correct application of these measures is one of the important elements that increase the effectiveness of competition law.

Conclusion

In competition law, interim measures are an indispensable tool for preventing damages caused by violations and protecting the healthy functioning of the market. These measures, taken within the authority of the Competition Authority, are implemented both to limit the consequences of the violation and to ensure the continuity of competition. The correct use of interim measures, within the framework of the conditions stipulated by law, makes a significant contribution to the protection of the economic order and competition.