Av. HAKAN HANLI AB Uluslararası Hukuk Uzmanı TÜGİAD ve ELEGANS MAGAZİN Brüksel Temsilcisi International Law Specialist/Brussels Representative for TÜGİAD and ELEGANS Magazine Globalisation & Competition Policy: Global Business The essence of the Single Market is the abolition of physical, technical and fiscal barriers to trade so that the free movement of goods, services, capital and persons can be realized. The market would not be able function effectively if free and fair competitionwere not guaranteed. As economies globalise, so competition and policy to ensure its maintenance become ever more important. The rules of competition, though not uniform in both form andstructure, are pivotal in determining mutual access to markets and need to be applied consistently and fairly to support the globalisation process by ensuring the equal treatment of indigenous and foreign companies. In this sense, Competition policy enjoys more prominence today than it has ever done. This has been a product of the economic changes we have witnessed in recent years. World-wide economic trends have seen a progressive move toward an ever wider acceptance and adoption of the market capitalist system. These trends have been most clearly exhibited in the economies of the developing world and in the remarkable transformation of centrally-planned economies. But the trends have also been evident in US, European economies and across theindustrialised world. The process of deregulation has liberated large segments of the economies which had previously been sealed off from the benefits of competitive forces, and there is an increasing recognition that there should be limits to the State's engagement in commercial activity. In this newly-liberalised world, there is an increasing recognition of the indispensability of pursuing a robust competition policy, so as to ensure that thecompetitive playing field is not distorted by anti-competitive behaviour. In parallel with this world-wide economic liberalisation, we have witnessed a progressive reduction in trade barriers, and a very dramatic increase in the volume of goodsand services being traded across borders. This development, in combination with remarkable technological advances, has resulted in a marked inter-dependence between economies world-wide. This globalisation presents major challenges for competition authorities around the world, and has highlighted the importance of seeking to ensure a maximum of convergence and coordination between the growing number of competition enforcement systems. International Dimention : "Bilateral Co-operation" Concerning bilateral cooperation between the US & EU and EU & Candidate Countries, it constitutes an obvious response to the challenges which the EU and the other countries face as a result of the rapid globalisation of the world economy. Over the past decade EU has concluded two competition law enforcement co-operation agreements with the United States. The 1991 (basic agreement) and 1998 ("positive comity") agreements have been a marked success. This experience with bilateral EU/US co-operation has been that it works very effectively - and particularly so in merger cases, substantially reducing the risk of divergent or incoherent rulings. Indeed, European Commission is in close and daily contact with their counterparts at the Anti-trust Division of the US Department of Justice and Federal Trade Commission. Beyond the specific case-related benefits arising out of this intensive cooperation for both competition authorities and private parties involved, the close daily contact between EC and the US is conducive to mutual confidence building, accrued knowledge of the substantive and procedural rules in each other's jurisdictions, substantial convergence in competition analysis, and the development of "best practices" in both substantive and procedural matters. Indeed, EU/US cooperation in this area has become somethingof a model for transatlantic co-operation generally. But, as the EU and its Member States have recognised for some time, bilateralism has its limitations: EU cannot realistically expect to build the same intensive co-operative relationship with all of its counterparts around the world -the price, in terms of expenditure of scarce administrative resources, would simply be too high. Global Dimention : "Multilateral Approach & Global Governance" In the recent years anti-trust enforcers came to realise that the trans-national character of today's competition cases clashes with the traditionally territorial scope of domestic anti-trust rules. In practical terms, this means that competition authorities world-wide have to find ways to overcome the jurisdictional barriers inherent in the territorial nature of antitrust enforcement jurisdiction. We have to overcome a number of legal and practical obstacles to discover the necessary evidence and to impose sanctions on global cartels which aredetrimental to the efficient conduct of business and harm consumers. The same appliesto abuses or attempts at monopolisation by dominant players on the world market. Further, we need to take into account the issues arising in connection with multi-jurisdictional mergers. As a growing number of jurisdictions adopt merger control regimes, withdiffering notification requirements and substantive standards, we face an increased riskthat we reach conflicting decisions and impose on firms remedies which may be incompatible with each other. From the point of view of business, which have to take account ofthe different regimes that claim jurisdiction to control their mergers, acquisitions and joint ventures, the situation is one of increased transactional costs and uncertainty. Further, there is here a question of global governance. In essence how competition authorities can ensure that the international integration of markets leads to maintained competitive outcomes, thus making the globalisation process both economically more efficient and socially more acceptable. In this context, competition policy and specifically, international co-operation on competition policy - has an important role to play, if we are to avoid resentment against globalisation and a protectionist backlash. Developing countries expect to be let into the game. The introduction of competition policy is an essential part of efforts by developing countries and countries in transition to re-structure their economies and integrate them fully to the world economy in order to be able to exploit new opportunities to compete. In order to claim their share in the benefits ofglobalisation, more developing countries adopt economic reform packages, which liberalise entire sectors, privatise state-owned enterprises and introduce competition laws and policies. They naturally look to established Competition Authorities for co-operation,support and technical assistance. Beyond bilateral cooperation, there have been efforts to deal with these challenges in multilateral fora. Organisations such as UNCTAD, the WTO and the OECD have in recent years multiplied their efforts to study the problems and have come up with valuable insights. The EU has been calling for a WTO Agreement on Competition, a proposal which has been well-received by many WTO members. A WTO agreement on competitionwould rest on a commitment by member countries to establish and enforce domestic competition laws. These laws should be based on "core principles" : non-discrimination, transparency, and due process reflecting a consensus between WTO members. Furthermore, WTO members should commit themselves to take all necessary measures to stamp out hard core cartels. In calling for a WTO global competition agreement, it is time to shatter the myth that we are seeking to erode the sovereignty of national authorities. On the contrary, strongnational enforcement agencies are indispensable to the success of a framework agreement. The Links Between Trade & Competition : "Global Business" Anti-competitive private practice can impede effective market access as well as the competitive process : locally dominant firm by abusing its position and working to exclude competitors limits to supply of goods into the market, etc_ Trade measures also can impede the competitive process as well as block effective market access. Various regulations can frustrate both market access and the competitive process, e.g. standards_ The OECD has come to recognise the mutually reinforcing nature of trade and competition policies. OECD states have undertaken to : Improve co-operation between national competition authorities, Increase the convergence of competition laws and policies, Extend scope and coverage of competition laws, Assess actual enforcement of competition laws, Examine case from both a competition and trade policy perspective.. The objective is not to create a heavy bureaucratic structure or, worse, a supranational competition authority. A tool we need when we enforce our domestic competition rules in an increasingly globalised environment. A tool that will help us provide a response to requests for more coherence, more coordination, more governance in international competition policy. Situation in Turkey Turkey has aligned its legislation framework in the area of antitrust policy in order to conform with the "community acquis" and the obligations of the Customs Union Agreement. She has adopted to a considerable secondary legislation, in particular in the area of block exemption regulations. The Act on the Protection of Competition was passed in 1994. It was modified in 1999 with respect to increase in penalties for offenders. It is largely modelled on the main principles of EU Anti-trust rules. Concerning State Aids, Turkey has to ensure an effective application and enforcement of the State Aid rules under the Customs Union Agreement. Considerable difficulties exist in relation to monopoly (state monopoly of commercial character) adjustment. The transitional period for adjustment foreseen by CustomsUnion Agreement expired on the 1st of January 1998. Turkish Competition Authority has been created a functionally independent body with the necessary administrative structures to allow for the effective implementation of rules for undertakings, started operation in 1997 and has adopted and published a number of legislative acts, e.g. Mergers & Acquisitions, exclusive distribution or purchasing agreements, block exemption, franchising agreements, etc_ Conclusion Competition policy is integral to the globalisation of the world economies. It defines the rules of entry and play within the game of competition. Competition policy is both reactive and proactive to the integration process, but as globalisation proceeds, the former is becoming more evident. As the globalisation process continues, there is an evolving process to re-orientate national rules initially based on the common (European) norm.Over time, pressure for further re-orientation at the global level is developing. Av. HAKAN HANLI: "KÜRESELLEŞME VE REKABET POLİTİKASI: KÜRESEL İŞ" Tek Pazarın özü, ürün, hizmet, sermaye ve kişilerin serbest hareket edebilmesini sağlamak amacıyla, ticaretin karşısındaki teknik, fiziki ve vergiyle ilgili engellerin kaldırılmasından oluşmaktadır. Serbest ve adil rekabetin garanti edilemediği durumlarda, etkili bir pazar oluşturulamaz. ABD ile AB ve AB ile Aday Ülkeler arasındaki iki taraflı işbirliklerine gelince, bunlar dünya ekonomisinin hızlı küreselleşmesi sonucunda AB ve diğer ülkeleri bekleyen mücadelelere karşılık olarak ortaya çıkmış bariz tepkilerdir. Anti-tröst uygulayıcıları son yıllarda günümüz rekabet koşullarının yerel anti-tröst kurallarının geleneksel kapsamlarıyla çakıştığını fark etmektedirler. Diğer bir deyişle, dünyada rekabeti yöneten tüm yetkililerin anti-tröst yasaları uygulamasının tabiatında bulunan yasal engelleri aşmanın bir yolunu bulmaları gerekmektedir. Türkiye anti-tröst politikası alanındaki yasal çizgisini Gümrük Birliği Anlaşması çerçevesinde belirlemiş bulunmaktadır.