Proposal for a Council decision on the position to be adopted by the Community within the EC-Turkey Association Council, concerning a Decision of the EC-Turkey Association Council adopting the implementing rules necessary for the application of the provisions on competition policy referred to in Article 37 of Decision 1/95 of the EC-Turkey Association Council
Date: 2001-11-07
Institutions: European Commission
Subjects: Association Council (EU), Türkiye, competition law, competition policy

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 07.11.2001
COM(2001) 632 final

Proposal for a

COUNCIL DECISION

on the position to be adopted by the Community within the EC-Turkey Association
Council, concerning a Decision of the EC-Turkey Association Council adopting the
implementing rules necessary for the application of the provisions on competition policy
referred to in Article 37 of Decision 1/95 of the EC-Turkey Association Council

(presented by the Commission)

EXPLANATORY MEMORANDUM

The proposed Decision on implementing rules for competition is based on Article 37 of
Decision 1/95 of the EC-Turkey Association Council. It covers competition policy in the
fields of rules for undertakings and state aid control.

The proposed implementing rules are based on existing rules, especially on those with the
CEECs. They do not change the obligations, or derogations granted from the acquis
communautaire, under the Decision 1/95. They do not try to achieve more than what is set out
in the mandate. In order to respect the mandate, provisions referring to merger procedures
have not been included.

The guiding principle for the implementing rules is that the existing systems and competition
laws remain unaltered by the implementing rules. The rules will however create viable
mechanisms for enhancing cooperation between the responsible authorities of the EC and
issues to fall within the interest of cooperation is that
Turkey. The main filter
anticompetitive behaviour or activities may affect trade between the European Community
and Turkey.

for

The proposal contains chapters on procedural provisions, substantive provisions, and
provisions relating to dispute avoidance. The cooperation mechanisms will aim at providing
for systematic information exchange and increased transparency with respect
to issues
covered by the implementing rules. The substantive provisions of Decision 1/95 are included
the principle to take into
by way of reference. In general,
consideration the important interests of the other Party in the course of its enforcement
activities.

the proposed rules recall

The proposed rules require the establishment of a Turkish State Aid Monitoring Authority
effective as of 01.01.2003. The Community would grant upon request technical assistance
within the existing frameworks in areas related to the implementing rules. The cooperation
and information mechanisms will also provide the Community with valuable instruments to
advance the approximation process.

The Council is requested to adopt the attached proposal for a Council Decision on the position
to be adopted by the Community within the EC-Turkey Association Council, concerning a
Decision of the EC-Turkey Association Council adopting the implementing rules necessary
for the application of the provisions on competition policy referred to in Article 37 of
Decision 1/95 of the EC-Turkey Association Council.

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Proposal for a

COUNCIL DECISION

on the position to be adopted by the Community within the EC-Turkey Association
Council, concerning a Decision of the EC-Turkey Association Council adopting the
implementing rules necessary for the application of the provisions on competition policy
referred to in Article 37 of Decision 1/95 of the EC-Turkey Association Council

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular
Article 83 thereof and the first sentence of the first subparagraph and the second subparagraph
of Article 300(2),

Having regard to the proposal from the Commission,

Whereas:

(1)

(2)

The Agreement establishing an Association between the European Economic
Community and the Republic of Turkey, is hereinafter referred to as the ‘Ankara
Agreement’,1.

Article 37 of Decision No 1/95 of the EC-Turkey Association Council lays down that
the Association Council shall adopt the necessary rules for implementation of Articles
32, 33, and 34 and related parts of Article 35, that these rules shall be based upon
those already existing in the Community and that they shall inter alia specify the role
of each competition authority,

1

OJ L 217 of 29.12.1964.

3

HAS DECIDED AS FOLLOWS:

The position to be adopted by the Community within the Association Council established by
the Ankara Agreement, concerning a Decision of the EC-Turkey Association Council
the provisions on
adopting the implementing rules necessary for
competition policy referred to in Article 37 of Decision 1/95 of the EC-Turkey Association
Council shall be based on the draft decision of the Association Council annexed to this
Decision.

the application of

Done at Brussels,

For the Council
The President

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DECISION OF THE EC-TURKEY ASSOCIATION COUNCIL
No

of

adopting the implementing rules necessary for the application of the provisions on
competition policy referred to in Article 37 of Decision 1/95 of the EC-Turkey
Association Council

THE EC-TURKEY ASSOCIATION COUNCIL,

Having regard to the Agreement establishing an Association between the European Economic
Community and the Republic of Turkey, hereinafter referred to as the ‘Ankara Agreement’,2

Having regard to Decision No 1/95 of
the EC-Turkey Association Council of
22 December 1995 on implementing the final phase of the Customs Union3 and in particular
Article 37 thereof,

Whereas Article 37 of Decision No 1/95 lays down that the Association Council shall adopt
the necessary rules for implementation of Articles 32, 33, and 34 and related parts of Article
35 that these rules shall be based upon those already existing in the Community and that they
shall inter alia specify the role of each competition authority,

HAS DECIDED AS FOLLOWS:

Article 1

The implementing rules necessary for the application of the competition provisions referred to
in Article 37 of Decision 1/95 of the EC-Turkey Association Council as set out in the Annex
to this Decision are hereby adopted.

2

3

OJ L 217 of 29.12.1964.
OJ L 35 of 13.2.1996.

5

Article 2

This Decision shall enter into force on the day of its adoption.

Done at …, .

For the EC-Turkey Association Council
The President

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ANNEX

Implementing rules for the application of the provisions on competition
policy referred to in Article 37 of Decision 1/95 of the EC-Turkey
Association Council

General Provisions

Article 1
General principles

1.

2.

The competencies of the Parties’ Competition authorities to deal with cases falling
within the scope of these Implementing Rules (“the Rules”) shall flow from their
respective competition laws and State aid rules.

Such cases shall be settled according to each Party’s relevant competition laws and
State aid rules, and having regard to the provisions set out below.

Article 2
Coverage

General Coverage

1.

The Rules cover all anticompetitive behaviour or activities addressed by rules for
undertakings (including prohibitions on anticompetitive collusion, and on abuse of
dominant position) and rules for State aid control of either Party, insofar as such
behaviour or activities may affect trade covered by Decision 1/95 of the EC-Turkey
Association Council.

De minimis clauses

2.

Anticompetitive behaviour or activities whose effects on competition are negligible
within the meaning of this Article are not covered by the Rules.

2.1.

Rules for Undertakings

2.1.1. Negligible effects are deemed to exist if the anticompetitive behaviour or activities
fulfil the specific conditions defined in the relevant legislation of each Party.

2.1.2.

In the event that the applicable legislation of one Party would define as negligible a
certain anticompetitive behaviour or activity whereas this is not the case under the
applicable legislation of the other Party, for the purpose of the Rules negligible
effects are deemed to exist.

2.2.

State aid control

2.2.1. Aid schemes or individual aids which do not involve export aid and which fall below
the threshold of Euro 100.000 of total aid per firm over a three-year period shall be
considered as having only a negligible effect.

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2.2.2.

The threshold referred to in paragraph 2.2.1. does not apply to shipbuilding, nor to
transport, nor to aid towards expenditure in connection with agriculture or fisheries,
nor to industries covered by the Treaty establishing the European Coal and Steel
Community.

Article 3
Competition Authorities

1.

The Competition Authorities responsible for the implementation of the provisions of
the Rules are:

–

for the European Community,

as to its responsibilities pursuant to the rules for undertakings and State aid
provisions of the European Community: the Commission of the European
Communities (“the Commission”), and

–

for Turkey,

as to its responsibilities pursuant to the rules for undertakings of Turkey:
the Rekabet Kurumu (“Turkish Competition Authority”) and

as to its responsibilities pursuant to the State aid provisions of Turkey:
the Authority to be established by Turkey in accordance with Article 17.1.
(“Turkish State Aid Monitoring Authority”).

Article 4
Definitions

“Enforcement activities” shall mean any application of competition laws and State aid
legislation by way of investigation or proceeding conducted by the Competition authorities of
a Party.

“Anticompetitive behaviour or activities” shall mean any conduct or transaction that
impermissible under the competition laws of a Party.

is

“Competition criteria” shall mean the totality of competition rules and interpretative
instruments adopted by the institutions of the European Community, including rules and
interpretative instruments on State aid.

Procedural Provisions

Article 5
Information Exchange and Transparency

1.1.

The Parties shall exchange information which will facilitate or enhance the effective
application of their respective competition laws and promote a better understanding
of their respective legal frameworks.

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1.2.

2.1.

2.2.

2.3.

3.

1.

Whenever one Party’s Competition authority becomes aware of the fact that a case
the
frameworks,
contrary to the respective legal
competence of the Competition authority of the other Party, appears to affect the
important
this Competition authority may request
information about this case from the Competition authority of the other Party.

interests of the first Party,

falling also or only under

The Competition authority to which a request for information is directed, shall give
sufficient information within the limits of what is legally possible, and at a stage of
its proceedings in advance of the adoption of a decision or settlement in order to
enable the requesting authority's views to be taken into account.

Both Parties shall ensure transparency in the domains of activity within the scope of
the Rules by providing appropriate publications and exchanging information on a
regular and reciprocal basis
to ensure and continuously improve
transparency.

in order

In particular, the European Community shall inform Turkey of any acts relating to
the preparation, adoption, abolition or modification of the competition criteria,
insofar as these are not published but are specifically brought to the attention of all
Member States.

In particular in the area of State aid, the Turkish State Aid Monitoring Authority
shall draw up and thereafter update annually an inventory of its aid schemes and
those prepared in the European
individual aid, established on the basis of
Community, including amount, intensity and purpose of any aid. The Turkish State
Aid Monitoring Authority shall publish annually a State aid report established on the
basis of the inventory.

Any exchange information under this Article is limited by the requirements of
professional and business secrecy and confidentiality.

Article 6
Notifications

Enforcement activities within the scope of the Rules, falling under the exclusive
competence of one Competition authority, and which may affect important interests
of the other Party, shall be notified to the Competition authority of the other Party.

2.1.

Each Competition authority shall notify to the Competition authority of the other
Party those enforcement activities within the scope of the Rules which appear also to
fall under the competence of the other Competition authority.

2.2.

In particular, this situation may arise in cases concerning enforcement activities that:

–

–

–

involve anticompetitive behaviour and activities carried out in a significant part
in the territory of the other Party,

are relevant to enforcement activities of the other Competition authority,

involve remedies that would require or prohibit a particular conduct in the
territory of the other Party,

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–

involve conduct believed to have been required, encouraged or approved by the
other Party.

Notification under this Article shall include sufficient information to permit an initial
evaluation by the recipient Party of any effects on its interests.

Provided that it is not contrary to the applicable competition laws and does not
adversely affect any enforcement activity being carried out, notification shall
ordinarily be provided by the proceeding Competition authority at the stage in an
enforcement activity when it becomes evident
that notifiable circumstances are
present, in advance of the adoption of a decision or settlement so as to allow for
comments and to enable the proceeding authority to take into account the other
Competition authority's views.

The notifying Competition authority shall give due consideration to the opinions
received from the Competition authority of the other Party when taking decisions.
This is without prejudice to any action under the respective competition laws of the
Parties.

Article 7
Co-ordination of Enforcement Activities

Without prejudice to Article 1, cases which fall under the jurisdiction of both
Competition authorities shall be dealt with by the Commission and the Turkish
Competition Authority according to the provisions of this Article.

A Competition authority may notify its willingness to co-ordinate enforcement
activities with respect to a specific case. The notified Competition authority shall
consider such expression in a favourable way within the limits of its applicable laws.

In determining the extent of co-ordination,
consider:

the Competition authorities shall

3.

4.1.

4.2.

1.

2.

3.

–

–

–

–

–

the effective results which co-ordination could produce;

the additional information to be obtained;

the reduction in costs for the Competition authorities;

the applicable deadlines under their respective legislation;

the availability of resources.

4.

Any co-ordination of enforcement activities under this Article shall not prevent the
Competition authorities from taking autonomous decisions.

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Article 8
Meetings

Representatives of each Party’s competent Competition authority and related authorities shall
meet as needed but no less than once every two years, in order to promote knowledge on both
sides of their respective competition laws and policies, and to evaluate the results of the co-
operation mechanisms and the dealings under the Rules.

Substantive Provisions

Article 9
Rules for Undertakings

The substantive obligations as laid down in Article 32 and 33 of the Decision 1/95 of the EC-
Turkey Association Council apply. Prohibitions and declarations of
inapplicability as
stipulated in the aforesaid Article 32 and 33 shall be enacted by the Party under which
jurisdiction these acts would fall in accordance with its relevant legal framework.

1.

2.

3.

1.

Article 10
State Aid Control

The substantive obligations as laid down in Article 34 of the Decision 1/95 of the
EC-Turkey Association Council apply. Subject to the procedural rules in force in the
European Community and Turkey, the Competition authority of the Party under
whose jurisdiction the State aid falls, shall examine the compatibility of State aid
within the scope of the Rules with the aforesaid Article 34 in accordance with its
relevant legislation.

The assessment of individual aids and aid schemes within the scope of the Rules
shall be compatible with the competition criteria.

The Competition authority of a Party that declares compatible or incompatible an
individual aid or an aid scheme on grounds of Article 34 of the Decision 1/95 of the
EC-Turkey Association Council shall notify this act and its reasons to the
Competition authority of the other Party.

Dispute Avoidance and Settlement

Article 11
Avoidance of Conflicts

Each Party shall, wherever possible, and in accordance with its own legislation, take
into consideration the important interests of the other Party in the course of its
enforcement activities.

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2.1.

If adverse effects for one Party would result from taking into account important
the Competition authorities shall seek a mutually
interests of the other Party,
acceptable solution.

2.2.

In this context, the following should be considered:

–

–

–

–

–

–

–

the relative significance of the measure and the impact which it has on the
interests of one Party compared to the benefits to be obtained by the other
Party;

the presence or absence, in the actions of the economic agents concerned, of
the intention to affect consumers, suppliers or competitors,

the degree of inconsistencies between the legislation of one Party and the
enforcement activities by the other Party;

the extent to which the same economic agents involved will be subjected to
incompatible requests, including judgements or undertakings, by both Parties;

the location of the assets of the economic agents involved;

the initiation of the procedure or the imposition of penalties or remedies;

the importance of the penalty to be imposed in the territory of the other Party.

Article 12
Consultations

1.

2.

3.

4.

A Competition authority which considers that an enforcement activity being
conducted by the Competition authority of the other Party, or its absence, may affect
its important interests should transmit promptly its views on the matter to and request
consultations with the other Competition authority with a view to reaching
expeditiously mutually satisfactory conclusions.

The Competition authority so addressed should give due consideration to the views
expressed by the requesting Competition authority, factual materials as may be
provided by the requesting authority, and in particular to any suggestions as to
alternative means of fulfilling the needs and objectives of the enforcement activity.

Entering into such consultations is without prejudice to any action under
its
competition laws and to the full freedom of ultimate decision of the Competition
authority concerned.

Where consultations do not lead to a mutually acceptable solution, or after the
expiration of a period of two months following the request, the matter may be
submitted to the Association Council.

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1.

2.

3.

1.

2.

3.

1.

2.

Article 13
Dispute Settlement

After the unsuccessful completion of consultations as described in Article 12 and on
request of the Competition authority of the Party which considers its important
interest affected, the Association Council may make appropriate recommendations
for the settlement of these cases.

These procedures in the Association Council are without prejudice to any action
under the respective competition laws in force in the territory of the Parties, nor to
the rights of individual Member States of the European Community on the basis of
their competition rules.

the Association Council has not

Only if
found a mutually satisfactory
recommendation after deliberations, a Party can claim that a practice is not being
adequately dealt with in the sense of the second condition of paragraph 1 of Article
38 of Decision 1/95 of the EC-Turkey Association Council.

Final Provisions

Article 14
Confidentiality

Neither Competition authority is required to provide information to the other
authority if disclosure of that information to the requesting authority is prohibited by
law of the Party whose Competition authority possesses the information or would be
incompatible with important interests of that Party.

information whose dissemination is not prohibited, but

Confidential
legally
restricted, or which, if disseminated, could adversely affect the interest of a Party,
shall not be provided without written consent of the source of this information.

Each Competition authority shall maintain confidentiality of any information
provided to it in confidence by the other Competition authority under the Rules, and
refuse any application for disclosure of such information by a third party that is not
authorised by the Competition authority that supplied the information.

Article 15
Administrative Arrangements

For the purpose of the Rules,
the working language is English. The Turkish
Competition authorities shall provide the practical arrangements for translations from
Turkish into English.

The Competition authorities shall use the appropriate form in writing for requests of
consultation. Communication may be oral, written, by mail, by facsimile, by
telephone, by electronic mail or any other means which the Parties may have at their
disposal.

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Article 16
Modification and Review

1.

2.

1.

2.

3.

4.

The Association Council may amend the Rules at
Competition authorities of both Parties.

the joint

request of

the

The Competition authorities of the Parties may meet at request and shall meet at the
latest in the fifth year after entry into force of the Rules in order to review its
application in detail and to propose amendments with a view to improving its
functioning or to identifying additional areas of co-operation.

Article 17
Supplementary Legislation and Technical Assistance

In order to implement
Monitoring Authority effective as of 01.01.2003.

the Rules, Turkey shall establish a Turkish State Aid

The European Community recognises
the need of Turkey to establish a
comprehensive inventory of aid schemes. Turkey shall establish such an inventory of
aid within one year following the establishment of the Turkish State Aid Monitoring
Authority.

At signature of the Rules, Turkey shall inform the European Community of the
content of any legislation necessary to promulgate for implementing the Rules and
notify to the European Community when such legislation is in place.

Upon request, the Community shall provide Turkey, within the existing framework,
with technical assistance for activities related to implementing the Rules.

Article 18
Entry into Force

The Rules shall enter into force on the first day of the month following their adoption.

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