Concerted Practice: Presumption of Proof in Information Exchange

Smart cartels don’t sign contracts. They don’t write “Let’s fix prices” on official letterhead. They meet at golf clubs, or simply “signal” each other through market behavior. To catch these elusive violations, Turkish Law uses the concept of Concerted Practice (Uyumlu Eylem).

What is Concerted Practice?

Defined in Law 4054 Art. 4: A coordination between undertakings which, without reaching the stage of an agreement, knowingly substitutes practical cooperation for the risks of competition.

• Key Element: “Meeting of Minds.” It doesn’t need to be written. A wink, a nod, or simply strictly following the price leader’s increase can be enough if it cannot be explained by market conditions.

The “Presumption” of Concerted Practice (Presumption of Violation)

This is the most dangerous weapon of the Competition Authority. Art. 4 Paragraph 3: “In cases where the existence of an agreement cannot be proven, if the price changes in the market, or supply/demand equilibrium closely resembles those of a market where competition is restricted, concerted practice is presumed.”

Shifting the Burden of Proof

Normally, “Innocent until proven guilty.” Here: “Guilty until proven innocent.” If 5 gas station companies raise prices by exactly 10% on the same Tuesday, the Authority says: “This looks like concerted practice. Prove to me that it is NOT.”

• Economic Defense: The companies must prove: “Oil prices rose globally,” “Tax increased,” “exchange rate spiked.”
• If they cannot prove an external economic factor, they are fined for Concerted Practice.

Information Exchange

Simply sharing sensitive future info is a violation.

• Scenario: Company A emails Company B: “We plan to raise prices by 5% next month. FYI.”
• Result: Even if Company B doesn’t answer, if they also raise prices, it’s a violation. Company B should have immediately replied: “I do not accept this info, do not send me this, I am reporting you.” (Public Distancing).

Hub and Spoke Cartels

A new trend. Competitors don’t talk to each other directly. They talk to a common supplier or retailer (“The Hub”).

• Retailer X tells Supplier A: “Supplier B is raising prices next week, you should too.”
• This indirect coordination is fully prosecutable as a cartel.

Conclusion

“We didn’t agree on anything” is not a defense if your prices move in perfect unison. In Turkish Competition Law, market outcomes (Parallelism) plus a lack of economic justification equals a Penalty.

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