The decision of the court has triggered many discussions in terms of competition law in
The investigations in 2017 and implementation of the non bis in idem principle
In 2017, the Board initiated two investigations concerning the activities of
In its second investigation in 2017, regarding the vodka and gin markets ("Vodka and Gin Investigation"), the Board found that
The non bis in idem principle is one of the basic principles of procedural law. It states that it is not possible to be judged and punished twice for the same action/subject. This principle is frequently referred to in court decisions. In a decision of the
Following the decisions made as a result of both investigations, the applicants filed appeals for the annulment of the decisions. The appeal filed by
Non bis in idem principle or interpretation of violations in different markets?
In the Vodka and Gin Investigation, the Board described the infringement behaviour as part of the overall strategy of the undertaking and reached a decision taking into consideration the non bis in idem principle. However, it should be noted that while making its decision, the Board adopted the approach that each of the raki, vodka and gin distilled beverages groups constitute separate product markets by emphasising that for a product to be defined within the same product market with another product, substitutability in terms of quality, price and purpose of usage is required from a consumer perspective. In the appeal case, the court of first instance adopted a parallel approach to the Board and defined these three high-alcohol beverages as separate product markets.
On the other hand, contrary to the Board's approach, the court of first instance did not consider the violation as part of the general strategy of the undertaking. The decision of the court stipulates that, based on the grounds that
In addition, while the Regional Administrative Court adopted this approach, it did not provide any explanation regarding the Board's discretion in the raki decision with respect to calculating the administrative monetary fine based on total turnover. In this context, it is noteworthy that the court defined the legal issues in parallel to the legal assessment of the Board, but it did not evaluate the scope of the Board's discretionary power in terms of the implementation of administrative fines. The most apparent reason for the application of the non bis in idem principle in the vodka and gin decision, which was published shortly after the raki decision, can be the Board's discretion with respect to imposing a monetary fine based on total turnover. While the administrative fine to be imposed in the raki decision was appraised, in this decision not only the turnover obtained from the raki product market was considered, but also the turnover obtained from the gin and vodka beverage markets was added. For this reason, The Board felt the need to apply the non bis in idem principle within the scope of the Vodka and Gin Investigation for the same violation.
Conclusion
The decision of the Regional Administrative Court does not include an evaluation of the sanction given by the Board in the Raki Investigation based on total turnover. In this context, it is noteworthy that the court made an assessment in parallel with the legal qualification of the Board but did not evaluate the discretionary power of the Board in terms of the implementation of administrative fines. The most apparent reason for the application of the non bis in idem principle in the Vodka and Gin Investigation, which was given by the Competition Board shortly after the Raki Investigation, is that
The Regional Administrative Court makes a special reference that the discretionary power belongs to the Board in determining the amount of the sanction, while revoking the decision of the court of first instance. In this respect, it can be considered that a reference is made to the fact that the Board is authorised to distribute the total administrative fine among investigations in the event that an action that has an effect on different markets is subject to two different investigations. This may create uncertainty for undertakings, as there are many investigations where the Board has detected violations and imposed a single administrative fine regarding actions that have had an impact on more than one market.
On the other hand, the decision of the Regional Administrative Court theoretically allows the Board to open as many investigations for a single action as the number of markets that such action has an impact on, and to apply individual administrative fines in each investigation to the undertaking subject to investigation, based on the total turnover of the undertaking. It can therefore be said that the decision of the Regional Administrative Court damages the legal certainty principle in terms of undertakings and the established practice of the Board.
As a result, the Board has confirmed that
The examination of the
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