In the episode IV of the epic movie Star Wars, Luke Skywalker shows up to restore justice in the galaxy before all hopes are wiped out by the tyrannical Darth Vader, formerly known as Anakin Skywalker who is the father of Luke. At this point, drawing an analogy with the Fining Regulation seems just a little bit (!) exaggerated or bizarre. The strong belief in and confidence to the Fining Regulation among commentators and practitioners, however, might lead us to think that the Fining Regulation could save the Turkish competition law village if not the galaxy.
As outlined in my previous post on the Fining Regulation (available here), it was nearly expected to emerge an enlightened age from the Fining Regulation in the early days of its adoption. One of the areas in which there are high expectations is cartel behaviour since the Regulation provides specific provisions to them in order to ensure the long-awaited deterrence. For instance, the Regulation sets out different starting range (2-4%) for cartels, includes exclusive aggravating factor (maintaining the cartel after the notification of investigation decision) while accepts the termination of infringements as a mitigating factor except cartels, provides leniency plus mechanism to destabilise cartels, and finally determines 3% lower limit for individuals in cartels.
Herein, one can reasonably wonder whether these provisions specific to cartels have achieved their goals. Giving another important figure in addition to the ones in our previous posts on this matter (see here and here) might help understanding this crucial question. You can see from the figure below that the number of undertakings and the ranges of their respective rates of fines.
As can be clearly seen in the figure, most of the rates are below 2 per cent. Literally, 180 out of 206 undertakings got fined below 2 per cent. Considering that 172 of these 180 undertakings have infringed the Article 4 of the Competition Act, which prohibits agreements and/or concerted practices between competitors, it becomes highly questionable whether the specific starting range in calculating fines for cartels has served the purpose. The situation becomes more dramatic when we look closely on the infringements committed by these 172 undertakings since at least 168 of these undertakings’ behaviour is related to horizontal collusion.
At this point, it can be also useful to make a comparison with the EU Commission’s statistics since these statistics are about to the ratios, not to the amount of fines. As of November 2011, the same statistics for the EU enforcement are as follows (please note that the EC has ended to share this statistic on that date).
Unlike Turkish competition law enforcement, the fines imposed by the EU Commission came closer to the 10 per cent cap in a surprisingly large number of occasions. To be more precise, 14,5 per cent (22 out of 151) of undertakings got fined within the range of 9-10 per cent.
All in all, although the Fining Regulation gave new hopes to us in the early days of its adoption, it is hard to say that it has achieved its goal to fight effectively with cartels and the track record of the TCA in this regard can hardly be resembled to an advanced competition law regime.