Filings to the Turkish Competition Authority Amid the COVID-19 Pandemic
Since December 31, 2019, when People’s Republic of China has notified the World Health Organization (“WHO”) for unusual number of people suffering pneumonia in Wuhan, the virus known as COVID-19 has spread around the globe and now has recently been identified as a “pandemic” by the WHO. The first confirmed case of the virus in Turkey has been announced on March 11 by the Minister of Health Fahrettin Koca, and since then, the necessary measures in order to confine the possible spread of the disease have been taken by the Turkish authorities. While COVID-19 continues to disperse in Turkey at an ever-increasing pace, the government started to heighten measures, signaling that more are underway.
These circumstances have led numerous competition authorities, including but not limited to the US’ Federal Trade Commission (“FTC”) and the Antitrust Division of the Department of Justice (“DoJ”) and the European Commission, to suspend or decelerate their activities. For example, the FTC and the DoJ announced that they will accept electronic submission of merger control notifications and suspended hard-copy filings. Further, the DoJ indicated that it will implement its all meetings and depositions through video conference tools. The Commission, in parallel with the US counterparts, announced that its staff will shift to remote and flexible working arrangements, except for non-critical functions. The Commission further encouraged transaction parties to delay their filings, if the delay would not result with grave negative consequences, and to submit any filing electronically.
· On March 13, the FTC has announced that the Premerger Notification Office will implement a temporary e-filing system. During the ongoing emergency, notifying parties are required to submit all filings via this system, and all hard copy and DVD submissions will be suspended. The FTC’s announcement also stated that the DoJ will implement the same measures.
· Subsequently, the DoJ has made an announced on March 17. In its announcement, the DoJ confirmed that it will accept electronic filing of merger control notifications and further declared that it has adopted a series of temporary changes to its civil merger investigation processes, which will remain in place during the presence of the COVID-19 pandemic. Within this respect, (i) for mergers currently pending or that may be proposed, the DoJ requests from merging parties an additional 30 days to timing agreements to complete its review of transactions after the parties have complied with document requests, (ii) the DoJ will conduct all meetings by phone or video conference (where possible), absent extenuating circumstances, (iii) all scheduled depositions will be postponed temporarily and will be rescheduled using secure videoconferencing capabilities.
· The European Commission, on March 12, has introduced measures for the Commission staff and announced that as of 16 March, all staff in non-critical functions will telework, while staff who ensure critical functions will continue to be present at work, working in shifts. Moreover, a spokesperson for the European Commission has stated on March 16 that companies had been encouraged to delay merger notifications until further notice, where possible, pointing to the complexities and disruptions caused by the coronavirus.
On Turkey, it should initially be mentioned that while President Recep Tayyip Erdoğan announced a comprehensive package on measures for the fight with the COVID-19 pandemic, no measures on postponement of public services has been introduced. Furthermore, Minister of Treasury and Finance Berat Albayrak has stated on March 19 that there would be no remote working in the public sector, except in special circumstances.
Given this, eyes of undertakings with business in Turkey and the Turkish competition law practitioners have turned to the Turkish Competition Authority’s (“Authority”) specific, if any, response to the COVID-19 pandemic. However, regardless of these circumstances, the Authority has not, yet, rendered a decision or issued an announcement concerning the COVID-19 pandemic. In fact, the Authority and its officers signaled that their works continue without any disruption and they do not expect any delays. For example, the Competition Board, which is the decision-making organ of the Authority, continues to convene and render its decisions. More concretely, the Board concluded a cartel investigation of ready mixed concrete suppliers in Yozgat province and published an announcement regarding initiation of a Phase II review for Gülçicek Chemistry and Volatile Oils’s acquisition by Fragar, on March 19. In other words, the Authority maintains its activities as it is and without being affected by the COVID-19 pandemic.
It should also be noted that, since March 8, 2018, any filing or application to be made to the Authority can be alternatively submitted through Turkey’s e-Government (“e-Devlet”) service, which citizens can use for accessing various public services and public administrations electronically. The e-Government system is as convenient and secure as physically submitting filings to the Authority. In particular, applicants are allowed to upload any documents, such as the notification form, any annexes and power of attorney for the merger control filing example. Also, although there are several ways to log in to the e-Government, two of them are e-signature and mobile signature. Having said that, the notifying parties can specifically request from their attorneys in Turkey to only login to the e-Government through e-signature or mobile signature, which could be considered as more secure methods, while submitting filings. In light of above, although it is not a COVID-19 pandemic specific measure, the e-Government mechanism can be preferred specifically during this quarantining setting.
Regardless of above, the unprecedented impacts of the COVID-19 pandemic may rise to further shutdowns in Turkey also. In this regard, the following are the confinement measures, which have been implemented until to date in Turkey:
· International travels of public officers have been prohibited, except superior permission;
· 12 days of right to leave granted to public officers that are either pregnant, above 60, handicapped, or has breast feeding leaves;
· The COVID-19 pandemic has been accepted as a justified excuse for mother public officers with children at the age of pre-school or elementary education to benefit their rights to leave;
· All trials and on-site inspections (of courts) should be suspended, except urgent cases and the cases comprising arrest of individuals.
· All levels of education will be provided through online mediums.
Therefore, in the event the number of confirmed COVID-19 cases in Turkey surges dramatically in the following dates or weeks, one cannot disregard the possibility of implementation vast measures such as shutting down or deceleration of businesses/public services or the Authority taking similar actions with the precautions adopted by the FTC, the DoJ and the Commission.
Nonetheless, under the current circumstances, it could be concluded that the Authority’s activities are not disrupted and there is no concrete reason to be concerned about the Authority’s competition enforcement. More concretely, prospective merger control notifiers within Turkey can sustain their relevant efforts, while the concerned undertakings of ongoing cases should not worry about substantial delays. In accordance with the emergence of new developments, BTS&Partners will keep posting any developments.
Adnan Akgün & Umut Bakanoğulları