New Development
The Communiqué Amending the Communiqué on the Regulation of the Right of Access to File and the Protection of Trade Secrets (Communiqué No: 2010/3) (“Old Communiqué“) has been published in the Official Gazette dated October 4, 2025, numbered 33037, and has entered into force (“Amending Communiqué“). The amendments, in addition to introducing procedural changes, aim to ensure unification with secondary legislation enacted in recent years, and to provide clarity and predictability in terms of application procedures for parties intending to submit such requests.
What does the Amending Communiqué introduce?
The Amending Communiqué primarily introduces changes that clarify which undertakings may apply for file access and under what conditions, as well as the scope of such applications.
- With the amendments made, it has been clarified that the scope of the application for both investigation and access to file reviews corresponding to Phase 2 reviews in mergers and acquisitions. Accordingly, the term “Phase 2 review” has been added to the relevant articles of the Old Communiqué, and expressions that could be interpreted as limiting the application for access to file solely to the investigation phase have been changed.
- Within the scope of the right of access to file, the term “intra-authority correspondence,” which was also stated in the Old Communiqué, has been clarified; the documents considered as intra-authority correspondence have been listed in detail.
- It has been clearly stated that the intra-authority correspondence and trade secrets are excluded from the scope of the right to access to file, except for parts that are exculpatory or incriminating with respect to the applicants.
- In terms of application procedure, the Amending Communiqué stipulates that the right to access to file may only be exercised after the investigation report is served, and only by the parties to whom the report is delivered. Accordingly, the provision in the Old Communiqué stipulating that the right of access to file may be exercised before the notification of the investigation report, but may be exercised after the notification of the investigation report, by taking into account the specifics of the case and explaining the legal grounds, in order to conduct the investigation in a healthy and safe manner and to prevent the risk of possible evidence tampering, has been removed.
- Pursuant to the amendments introduced regarding written defenses during the investigation phase conducted by the Competition Authority under Law No. 4054 on the Protection of Competition, it has been regulated that the request for access to file may be submitted until the expiration of the period prescribed for the first written defense, or, in cases where the investigation team sends an additional written opinion, until the expiration of the period prescribed for the second written defense.
- With the Amending Communiqué, the section titled “Undertaking’s Status in the File” in the request form (“Form”) to be used in applications for access to file has been removed, thereby clarifying that the form can only be used by parties to whom the investigation report has been served.
- It has been regulated that the Amending Communiqué will not be applied to investigations currently in progress and will enter into force with respect to future investigations, and potential ambiguities have been eliminated.
| Old Communiqué | Amending Communiqué |
| Purpose ARTICLE 1 – (1): The purpose of this communiqué is to set the procedures and principles concerning the exercise of the right of access to file by parties; and | Purpose ARTICLE 1 – (1) The purpose of this communiqué is to set the procedures and principles concerning the exercise of the right of access to file by parties subject to investigation or Phase 2 review; and procedures and principles, for determining whether the pieces of information obtained during the implementation of the Law No. 4054 on the Protection of Competition dated 7 December 1994 qualify as trade secret, and for protecting those pieces of information and documents that have been classified as trade secret.
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| Scope ARTICLE 2 – (1) This Communiqué shall be applicable for any information and document that have been obtained within the framework of the implementation of the Act No. 4054, in respect of the right of access to file and evaluation of trade secrecy. | Scope ARTICLE 2 – (1) This Communiqué shall be applicable for any information and document that have been obtained within the scope of investigations or Phase 2 reviews conducted under Law No. 4054, and within the framework of the implementation of the Act No. 4054, in respect of the right of access to file and evaluation of trade secrecy. |
| Definitions ARTICLE 4 – (1) For the provisions of this Communiqué, the following definitions apply: … | Definitions ARTICLE 4 – (1) For the provisions of this Communiqué, the following definitions apply: … |
| General principles ARTICLE 5 – (1) The right of access to file shall be granted upon the written requests lodged by the parties within due period, during the investigations conducted within the scope of the Law. The right of access to file shall be fulfilled for one time, as long as no new evidence has been obtained within the scope of the investigation. … (3) Requests from the complainant and third parties shall be evaluated within the framework of general provisions. | General principles ARTICLE 5 – (1) The right of access to file shall be granted upon the written requests lodged by the parties within due period, during the investigations and Phase 2 reviews conducted within the scope of the Law. The right of access to file shall be fulfilled for one time, as long as no new evidence has been obtained within the scope of the investigation and Phase 2 review. … (3) Requests from the complainant and third parties shall be evaluated within the framework of general provisions. |
| Information and documents that fall under the right of access to file ARTICLE 6 – (1) Within the scope of the right of access to file, the parties can have access to any document that has been drawn up and any evidence that has been obtained by the Authority concerning them, except for intra-Authority correspondences and those that include trade secrets and other confidential information about other undertakings, associations of undertakings and persons. | Information and documents that fall under the right of access to file ARTICLE 6 – (1) Within the scope of the right of access to file, the parties can have access to any document that has been drawn up and any evidence that has been obtained by the Authority concerning them, except for intra-Authority correspondences and those that include trade secrets and other confidential information about other undertakings, associations of undertakings and persons. (2) Except for the exculpatory or incriminating parts, intra-Authority correspondences and trade secrets do not fall within the scope of the right of access to file. |
| Intra-Authority correspondences ARTICLE 7 – (1) Intra-Authority correspondences are correspondences between units, which have the nature of preparatory acts for the final decisions taken by the Board. (2) Information and documents that have been obtained within the framework of Article 6 paragraph three and Article 9 paragraph three of the Regulation on Active Cooperation for Detecting Cartels, as well as correspondences between the Authority and those from whom information was obtained such as other public institutions, professional organizations that have the nature of public institution or natural and legal persons in the private sector, are accepted as internal correspondence. | Intra-Authority correspondences ARTICLE 7 – (1) Intra-Authority correspondences are correspondences between units, which have the nature of preparatory acts for the final decisions taken by the Board. All reports prepared within the institution, such as preliminary review and pre-investigation reports, are considered intra-authority correspondences. (2) The following documents are also considered intra-Authority correspondences: a) Information and documents that have been obtained within the framework of Article 6 paragraph three and Article 9 paragraph three of the Regulation on Active Cooperation for Detecting Cartels published in the Official Gazette dated 16 December 2023 and numbered 32401, b) as well as correspondences between the Authority and those from whom information was obtained such as other public institutions, professional organizations that have the nature of public institution or natural and legal persons in the private sector, within the scope of Article 14 of the Law. c) The documents listed in the fourth paragraph of Article 6 and the second paragraph of Article 8 of the Regulation on the Settlement Procedure Applicable in Investigations on Restrictive Agreements, Concerted Practices and Decisions, and Abuse of Dominant Position, published in the Official Gazette dated 15 July 2021 and numbered 31542. ç) Minutes and their annexes prepared within the scope of Article 15 of the Law. |
| The duration and form in which the right to access can be exercised ARTICLE 8 – (1) Parties that have been notified that an investigation was initiated concerning them can request that they be given a copy of any document drawn up, and if possible, of any evidence obtained by the Authority in relation to them. (2) For the investigation to be conducted in a proper and secure fashion and for preempting the likely threat of obscuring evidence, requests for access to file prior to the notification of the investigation report can be deferred considering the specifics of the concrete incident and providing the legal grounds. In case of deferment, the request for access to file shall be satisfied within a reasonable period starting from the notification of the investigation report. (3) Finally, the parties can file a request for access to file until the termination of the last written plea period granted to them. (4) Requests to access to file shall be made by filling the File Access Request Form attached to this Communiqué correctly and completely. | The duration and procedure in which the right to access can be exercised ARTICLE 8 – (1) Parties that have been notified that an investigation was initiated concerning them All parties to whom the investigation report has been served can request that they be given a copy of any document drawn up, and if possible, of any evidence obtained by the Authority in relation to them. (2) For the investigation to be conducted in a proper and secure fashion and for preempting the likely threat of obscuring of evidence, requests for access to file prior to the notification of the investigation report can be deferred considering the specifics of the concrete incident and providing the legal grounds. In case of deferment, the request for access to file shall be satisfied within a reasonable period starting from the notification of the investigation report. (3) Finally, the parties can file a request for access to file until the termination of the last written plea period granted to them the deadline for the first written defense, or—if the investigation team submits an additional written opinion—until the expiration of the deadline for the second written defense. (4) Requests to access to file shall be made by filling the File Access Request Form attached the file access request form attached as ANNEX-1 to this Communiqué, correctly and completely. Applications not made in this manner will not be accepted. |
| Evaluation of the requests for access to file ARTICLE 9 – (1) Requests for access to file shall be evaluated by the investigation committee, in light of the information included in the form. In case the request is accepted, the method and timing of access to file and the other points regarding access to file shall be notified to the submitter of the request in writing. … | Evaluation of the requests for access to file ARTICLE 9 – (1) Requests for access to file shall be evaluated by the investigation committee, in light of the information included in the form the access request form provided as ANNEX-1. In case the request is accepted, the method and timing of access to file and the other points regarding access to file shall be notified to the submitter of the request in writing. … |
| Fulfillment of the right of access to file ARTICLE 10 – (1) The right of access to file can be fulfilled by giving or sending the photocopies or electronic copies of the documents that exist in the file and have been rendered accessible, considering also the request of the concerned. (2) Pieces of information that have been obtained within the framework of Article 6 paragraph three and Article 9 paragraph three of the Regulation on Active Cooperation for Detecting Cartels, as well as other intra-Authority correspondences that have the nature of exculpatory or accusatory evidence can be examined at the headquarters of the Authority. (3) The nature and number of pages of the documents that are to be given to the parties within the scope of the right of access to file shall be recorded in writing as minutes or as a letter to be sent to the parties. … | Fulfillment of the right of access to file ARTICLE 10 – (1) The right of access to file can be fulfilled by giving or sending the photocopies or electronic copies of the redacted documents that exist in the file and have been rendered accessible, considering also the request of the concerned. (2) Pieces of information that have been obtained within the framework of Article 6 paragraph three and Article 9 paragraph three of the Regulation on Active Cooperation for Detecting Cartels, as well as other intra-Authority correspondences that have the nature of exculpatory or accusatory evidence Documents for which access has been granted can be examined at the headquarters of the Authority. (3) The nature and number of pages of the documents that are to be made accessible to the parties within the scope of the right of access to file shall be recorded in writing as minutes or as a letter to be sent to the parties. … |
| Usage of information and documents accessed through the right of access to file ARTICLE 11 – (1) Information or documents that have been obtained within the scope of the right of access to file can only be used, in relation to the file opened to access, for pleas to be made within the scope of the Act No. 4054 and for seeking administrative judicial review. | Usage of information and documents accessed through the right of access to file ARTICLE 11 – (1) Information or documents that have been obtained within the scope of the right of access to file can only be used, in relation to the file opened to access to the parties, for pleas to be made within the scope of the Act No. 4054 and for seeking administrative judicial review. |
| Current investigations TEMPORARY ARTICLE 1 – (1) This Communiqué shall not apply to investigations that were decided to be conducted before its entry into force. | Current investigations TEMPORARY ARTICLE 1 – (1) This Communiqué shall not apply to investigations that were decided to be conducted before its entry into force. (2) The regulations introduced by the Communiqué that enacted this paragraph shall not apply to ongoing investigations. |
Conclusion
With the Amendment Communiqué, the scope of undertakings eligible to benefit from applicant status during investigation and Phase 2 review processes has been limited to those parties to whom the investigation report is formally notified. Procedural regulations introduced have also defined the timeframe during which an application to access to case file may be submitted, starting from the notification of the investigation report. Additionally, it is understood that the definitions of certain concepts found in the Old Communiqué have been clarified, and that the aim is to ensure greater clarity and predictability in the application process.
