On The Misinterpreted Articles 10 And 11 Of The Administrative Procedure Law And The Overlooked Article 74 Of The Constitution, In Light Of A Competition Board Decision On The Settlement Mechanism

The recent evaluative trends of the Turkish Competition Board regarding applications submitted under the Administrative Procedure Law No. 2577 ("İYUK") have sparked significant legal debate. This study, titled "Evaluating Articles 10 and 11 of the Administrative Procedure Law and the Overlooked Article 74 of the Constitution in Light of a Recent Competition Board Decision on Settlements," authored by Dr. Y. Sertaç Serter, delves into the compatibility of decisions rendered within the scope of the settlement mechanism with the relevant provisions of İYUK and fundamental constitutional safeguards. At the heart of the analysis is a procedural paradox arising from an investigation into fertilizer producers. While İstanbul Gübre Sanayi A.Ş. opted for the settlement procedure-resulting in an established infringement and administrative fine-a subsequent final decision concluded that the other six undertakings involved in the same investigation had not committed any violation. The Board's refusal to withdraw the settlement decision in light of this contradiction, despite the mutual nature of the alleged act, raises critical questions regarding the right to property, the right to a fair trial, and the principle of equality.

Contrary to the narrow interpretation often adopted by the Board, this article argues that the primary purpose of Article 11 of İYUK is to protect the right of individuals to seek administrative remedies and to ensure that the statute of limitations is suspended during such attempts. Under the principle of legality, the existence of a litigation ban does not imply that an administrative body may persist in an unlawful act. Instead, the administration remains duty-bound to ensure its actions conform to the law and to withdraw erroneous decisions ex officio when necessary. Rooted in the right of petition under Article 74 of the Constitution and the broader freedom to seek legal remedies, these procedural rules must be interpreted broadly to facilitate rather than restrict judicial review . This research provides a vital analysis for aligning competition law practices with general administrative law principles and constitutional standards.

You can access the full text of our article, where these issues are discussed in detail, at the following link: BASEAK - On the Misinterpreted Articles 10 and 11 of the Administrative Procedure Law and the Overlooked Article 74 of the Constitution, in Light of a Competition Board Decision on the Settlement Mechanism

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