30 Apr ANTI-COMPETITIVE BEHAVIOR OF BANKS- SUPREME COURT DECISION
T.C. COUNCIL OF STATE 13.APARTMENT, 2015/2624 E., 2015/4608 K. Date of 16.12.2015
INTEREST RATES AND FEES APPLIED FOR BANKING SERVICES (Where Actions Taken by 12 Banks Together /Limiting Competition Occur Within the Scope of a Settlement involving Deposit Credit Card and Credit Services – Violation of the Competition Protection Law / Where the Decision of the Competition Board to Impose an Administrative Fine at the Rate of 1% of Annual Gross Revenues is in Accordance with the Law)
ACTIONS THAT LIMIT COMPETITION (Reconciliation of Enterprises Operating in the Banking Sector / Implementation and Follow–Up of the Common Denominator of the Compromise Formed by the Co-Determination of Price Strategies Between the Parties Through a Series of Communication Information Sharing and Reconciliation – The Administrative Fine Issued by the Competition Dec is in Accordance with the Law)
VIOLATION OF THE LAW ON COMPETITION PROTECTION (Where 12 Banks Jointly Determine the Interest Rates and Fees Applied for Various Banking Services / Actions that Limit Competition Occur Within the Scope of a Settlement involving Deposit Credit and Credit Card Services – There is No Violation of the Law in the Decision of the Competition Board on the Imposition of an Administrative Fine at the Rate of 1% of Annual Gross Revenues)
ANTI-COMPETITIVE BEHAVIOR OF BANKS (There is No Violation of the Law in the Decision of the Competition Board on the Imposition of an Administrative Fine at the Rate of Approximately 1% of Annual Gross Revenues – 12 Banks Jointly Set Interest Rates and Fees Applied for Various Banking Services / Actions that Limit Competition Occurred as Part of a Compromise Involving Deposit Credit Cards and Credit Services)
Credit card services of the bank reconciliation (reconciliation strategy for the determination of the price of the common denominator of communication between the parties is created by a series of implementation and monitoring, information sharing and understanding Through performance – competition of the board in compliance with the law is the administrative monetary penalty/is contrary to the law on protection of competition)
Lending / deposits (interest rates and fees for the services of banks that is applied with a 12 Set/restrictive nature of competition and credit your credit card a deposit of actions within the scope of the services on the subject of a compromise had occurred – the determination of the price of reconciliation strategy implementation and monitoring of the common denominator between the parties created by a series of communication, information sharing and performance through understanding)
4054/m. 4, 16/3
SUMMARY : enterprises in the banking sector, interest rates and fees for various banking services that is applied to determine where they are in competition with restrictive nature of the actions in question of the actions deposits (in terms of public banks, public deposits, including loan and credit card services on the subject of a compromise and reconciliation had occurred within the scope of the common denominator, with strategies created to determine the price for determination of the elements of the compromise, between the parties conducted a series of implementation and monitoring of communication, information sharing and performance through understanding of reconciliation as a place in the analysis of the documents has been obtained, where competition among banks party to the investigation of the contents of this document are shared under an agreement on sensitive information where, in some documents, the top managers of banks that compete in the market they met at breakfast, as a result of these meetings and negotiations, it is understood from the documents found in the file that information is shared that reveals the existence of an agreement.
As of this moment, the plaintiff’s actions in violation of the competition specified in Article 4 of the Law. since it is understood that it has violated the article, there is no violation of the Board’s decision on the subject of the lawsuit to impose an administrative fine of 148,231,490-TL on the plaintiff at the rate of 1% of the estimated annual gross income established by the Board at the end of the 2011 fiscal year.
Summary of the Request : Ankara 2. The Administrative Court dated 25.12.2014 and E:2014/232 , K:2014/1581 The decision of the; The board of its decision 0.3% to 1.5% between fined, but this is different punishment is unable to explain the reason in the decision, the lack of definition of the relevant product in the process required by the cancellation of Sunday, where an incomplete review of the board’s decision is made based on the inter-bank reconciliation it could not be proven, that a compromise can be proved not only that the investigation on the basis of the documents evaluated incorrectly, only disregards the distinction between parallel actions that are compatible with the behavior, is contrary to the principle of equality and proportionality of administrative penalties, it is suggested that the banks with public capital are not taken into account that they are the only economic integrity and it is desirable to disrupt
Summary of the Defense : It is argued that the decision of the Administrative Court, which is in accordance with the procedure and the Law, should be upheld with the rejection of the appeal request.
Opinion of the Examining Judge of the Council of State: It is considered that the Court decision should be upheld by rejecting the appeal request.
ON BEHALF OF THE TURKISH NATION
After the Thirteenth Chamber of the Council of State, which made the decision, listened to the statements of the Examining Judge and examined the documents in the file, 17 of the Administrative Procedure Code No. 2577. article 2. in accordance with the paragraph, the plaintiff was interviewed about the need to work without making a further decision on the request to stop the execution because the company’s request for a hearing was not seen on the spot and the file had been tampered with:
DECISION : the case of the banks that operate in Turkey, deposit, loan and credit card services of interest rate, fees and commissions on the determination of an agreement and/or concerted action by reference in 4 of the Law No. 4054 on protection of competition. as a result of the investigation into whether they acted in violation of Article 4 of the Law on the plaintiff company. it was opened with a request to cancel the decision of the Competition Board dated 08.03.2013 and numbered 13-13 / 198-100 on the application of an administrative fine of 148.231.490-TL for betting in violation of the article; by the Administrative Court; when all the information, documents and evidence October in the file with the investigation report and its annexes are evaluated together; the banks under investigation deposits, loans, credit card services, competition in the market about the determination of interest rates and various fees, preventing, disrupting, or birth or which are likely to have this effect the effect of the restriction they were found in agreements and concerted action, the information you share trade secrets with each other, market-oriented decisions in negotiation for getting together acted in accordance with the agreement of wills and compliance, under this agreement the agreed fixed issues with graphics and economic analysis that has been implemented is given that the plaintiff Bank of agreements and concerted practices in Question 4 of the Act No. 4054. because we conclude that the article breached, the plaintiff in return for these actions on their income at the end of the fiscal year 2011 annual gross takdiren about 1% 148.231.490-TL the subject of the case the decision of the board on the application of administrative fines is considered a violation of law where the plaintiff by all public banks (AGRICULTURE, VakifBank and Halkbank) should be considered as a single economic integrity it has been claimed that all three banks, the organization of the basic structure and purpose of the organization was last edited by the provisions of the law, each of the Turkish commercial code and in accordance with the provisions of the banking law on the nature of a joint stock company with independent legal entities, they are all able to operate in the field of banking services, private banking activities of banks with other banks, they have to compete with commercial strategies that contribute to data in other state-owned banks, not to mention sharing it with all of their organs are located where the three public banks the management of strategic decisions taken by the organs in question, including any executive decisions, the management bodies of the bank, but also finding a manager who takes part in other public authorities do not have any legal obligation in the direction of any public officer in the executive branch in actual cases, as in the absence of an administrator who worked in the absence of banks simultaneously, the three state-owned bank outside the bank resulting from any authority or person in the decision making process lacks the authority to intervene in the legislation, decisions by the governing bodies of the banks subject to the approval of any public authority where it is not legal or de facto, or decisions by the governing bodies of such authority to make strategic decisions on the appropriateness of the bank the check is not out of the question banks of all kinds of operational and strategic decisions taken without the decisive influence of the independent public authority, in the absence of regular data flow between banks, banks in terms of public authorities, capital from having a majority or all of their power from the power to appoint a member of the board of directors and limited to only hissedarlik used as the state’s public-owned banks that consists of general supervision and control of activities of the public authorities the impact on the strategic decisions of the respective banks did not intervene in the issues that are considered together when the Agricultural Bank, VakifBank and Halkbank independent of each other, thus blocking competition, jamming, since it was concluded that they are legal entities that have the purpose of restriction or have the obligation to refrain from actions that have or may have this effect, it was decided to dismiss the case on the grounds that the plaintiff’s claims to the contrary were not respected, and this decision was appealed by the plaintiff.
4 of the Law No. 4054 on the Protection of Competition. in its article, “Such decisions and actions of enterprises’ agreements, concerted actions and associations of enterprises that are directly or indirectly aimed at preventing, Deconstructing or restricting competition in a particular market of goods or services, or that have or may have this effect, are unlawful and prohibited.
These states, in particular, are:
Determination of the purchase or sale price of goods or services, elements such as cost, profit that make up the price, as well as all types of purchase or sale conditions,
The division of goods or services markets and the sharing or control of all kinds of market resources or elements,
Control of the quantity of supply or demand of goods or services or their determination outside the market,
Complicating, restricting the activities of competing enterprises or excluding enterprises operating on the market from the market by boycotts or other behaviors, or preventing new entrants to the market,
Applying different conditions to persons in an equal situation for equal rights, obligations and actions, with the exception of exclusive dealership,
The nature of the commercial principles in violation of the agreement or any other goods or services or purchase of goods or services in the attempt of the buyers in the event of mandatory vehicle demand, conditional on the presentation by the seller of goods or services for other goods or services or supply of goods or the supply of the services again, it is argued that the terms of,
If the existence of an agreement cannot be proven, price changes in the market or the balance of supply and demand or the regions of activity of enterprises are similar to those in markets where competition is blocked, disrupted or restricted, this constitutes a presumption that the enterprises are in concerted action.
Provided that it is based on economic and rational facts, each of the parties can be relieved of responsibility by proving that it has not taken concerted action.” the rule is given below.
On the other hand, Article 16 of the Law entitled “Administrative Fines”. article 3. in paragraphs 4, 6 and 7 of the Act. in the articles to those who engage in prohibited behavior, with a penalty attempt from the final decision of the members of these units attempted units or at the end of the previous fiscal year or the date of the final decision if this calculation is not possible at the end of the next fiscal year and the annual gross income, which may be determined by the board will be given an administrative fine of up to ten percent of that is expressed.
From the study of the case; the highest ratio of interest rates by banks is determined through in interest rates of any bank not to discount all banks that uses the same interest rate on the claims made by the board decided that the outcome of the review of preliminary research to be done, where it was prepared and 4 of the Act No. 4054 on the preliminary investigation report. for the purpose of determining the existence of violations of article where the decision is made to open an investigation of the investigation, Akbank, Garanti Bank, Iş Bank, YKB, TEB, VAKIFBANK, HALKBANK, AGRICULTURE, Denizbank, Finansbank, HSBC and ING Bank are carried out upon completion of the investigation, the report issued by banks dated 25.02.2013 written and oral defense defenses are also taken into consideration the case made at the meeting, subject to the decision of the board of the undertakings in Question 4 of the Act No. 4054. it is understood that it was concluded that he violated the article, and an administrative fine was imposed on the relevant enterprises.
4 Of the Law No. 4054. the competition in the market with the article specific goods and services, directly or indirectly, blocking, jamming, or birth, or the purposes of this effect, which may lead to the restriction or agreements between undertakings, decisions of associations of undertakings and concerted practices and actions of this kind are prohibited. As of this date, Article 16 of the Law No. 4054. in order to apply an administrative fine to a competition violation based on Article 4 of the Law. it is necessary to conclude an anti-competitive agreement specified in the article or to take a concerted action, and also to establish the existence of these illegal acts.
4 Of the aforementioned Law. in the rationale of the article, it is stated that the agreement is used in the sense of any kind of compromise or agreement that the parties feel bound to, even if it does not comply with the conditions of validity of the Civil Law, for the purpose of the article, it does not matter whether the agreement is written or oral.
In the overall justification of the Act No. 4054; price and profit in a market economy where competition is maintained away from the interference of the competition will be determined as indicators of a market economy with a status of a process is the vehicle that enables the functioning of the terms that will create competition in the absence of a market economy is not as healthy functioning of this process to ensure smooth functioning and attitudes in respect of undertakings should abstain from actions that are against the competition stated.
In cases where the purpose of violating competition can be determined, it is of minimal importance to determine the nature of the acts and behaviors that are alleged to be contrary to competition. As a matter of fact, in summary of the provisions of the Law No. 4054 and the reasons for it, it is stated that acts and behaviors aimed at violating competition are prohibited. It is clear that there will be a suspicion that there is a non-competitive purpose in sharing information such as price and cost for the future, which is not in doubt when it is important from a competitive point of view, with another enterprise competing in the market. The fact that the sharing of sensitive information to the competition is repeated within a certain process also supports this suspicion and reveals the existence of an agreement. It is also clear that the fact that information sharing is not repeated will not exclude the sharing of information sensitive to competition from being an anti-competitive agreement, and this will be evaluated by the relevant authorities according to the nature of each concrete event.
Enterprises in the banking sector, interest rates and fees for various banking services that is applied to determine where they are in competition with restrictive nature of the actions in question of the actions deposits (in terms of public banks, public deposits, including loan and credit card services on the subject of a compromise and reconciliation had occurred within the scope of the common denominator, with strategies created to determine the price for determination of the elements of the compromise, implementation, and monitoring of communication between the parties conducted a series of, performance through information sharing and understanding of reconciliation as a place in the analysis of the documents has been obtained, where competition among banks party to the investigation of the contents of this document are shared under an agreement on sensitive information where, in some documents, the top managers of banks that compete in the market they met at breakfast the meeting and the talks as a result of which reveals the existence of an agreement it is understood from sharing information in the files of documents.
The undertaking of the plaintiff; obtained in the investigation document-2, and the economic analysis performed on this document, document and document clearly the gentleman’s agreement is a party to the presence of 3-4, deposit interest rate from the analysis based on these documents, attended by an agreement on the document-14, Document-16, document-Document 20-21 state-owned banks that carries the purpose of competition between disruptive they make a deal, it is understood that the plaintiff is also included in the agreement.
As of this moment, the plaintiff’s actions in violation of the competition specified in Article 4 of the Law. since it is understood that it has violated the article, there is no violation of the Board’s decision on the subject of the lawsuit to impose an administrative fine of 148,231,490-TL on the plaintiff at the rate of 1% of the estimated annual gross income established by the Board at the end of the 2011 fiscal year.
CONCLUSION: The appeal against the rejection of the case on the grounds outlined above is subject to Ankara 2. The Administrative Court dated 25.12.2014 and E:2014/232 , K:2014/1581 In its decision No. 49 of the Code of Administrative Procedure No. 2577. article 1. since there are none of the reasons for the violation listed in the paragraph, the appeal request is not seen on the spot and the Court decision is UPHELD on the above-mentioned GROUNDS; sending the file to the said Court, unused 45,60.-It was decided unanimously on 16.12.2015 to refund the TL execution stop fee to the plaintiff in case of his request, with a clear way to correct the decision within 15 (fifteen) days after the date of notification of this decision.
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