A well-known Hollywood movie, The Usual Suspects, makes a story of a legendary mastermind criminal called Keyser Söze who has pretended throughout the movie to be a crippled con-man, named Verbal Kint. At the opening scene of the movie, five criminals, including Verbal Kint, were rounded up by the police as the “usual suspects” of the crime. Herein we come to the connection between this story and competition law enforcement: the treatment to the repeat offenders, namely recidivists.
Last monday, the TCA published its long-awaited (at least for me) decision concerning cement producers (old friends of the TCA) located in the East and South East Anatolian Regions (available here in Turkish). One of the prominent features of the case is that the TCA did not increase the fine due to recidivism again. When we look closely into the decisional practice of the TCA, it is seen that recidivism was accepted as an aggravating factor in only 4 decisions, in all of which elements of recidivism has not been clarified. This decision does not differ from the decisional practice in this regard (At this point, it should be reminded that the Act explicitly states in paragraph five of the article 16 of the Act that the repetition of infringement shall be take into consideration when deciding on an administrative fine).
However, the distinctive feature of the decision is the inclusion of dissenting opinions by 3 members of the Turkish Competition Board that consists of 7 members. According to these opinions, imposing higher fines to repeat offenders is crucial for effectively combating with infringements and achieving deterrence. Since recidivists are distinct from other infringers in their inability to learn from past mistakes. More importantly, they opined that it is not necessary to infringe the same article of the Act for the recidivist uplift since the Act does not explicitly refers to the specific recidivism. They continue by saying that the fine should be increased if the former and a new infringement committed by different legal entities within the same undertaking.
All in all, the TCA seemed not to grasp the opportunity to punish and deter usual suspects again. Some may expect to see whether the TCA depart from its common practice in the forthcoming decisions. However some can describe this view as a naïve optimism.