Competition Newsletter - February 2024

This Competition Law Newsletter provides information on the latest developments in relation to the Turkish competition market and the implementation of Law No 4054 on the Protection of Competition (the "Law") in light of recent announcements and publications by the Competition Authority (the "Authority") and decisions of the Competition Board (the "Board") published in January 2024.

Competition Market Overview

Announcements

A- Investigation Announcements:

Recently Initiated Investigations

• At its meeting on 04.01.2024, the Board decided to initiate an investigation with its decision numbered 24-01/5-M against Bağdat Pazarlama Ticaret ve Limited Şirketi and Deva Baharatları Gıda Sanayi ve Ticaret Limited Şirketi to find out whether they violated Article 4 of the Law by practising resale price maintenance (“RPM”).
• At its meeting on 04.01.2024, the Board decided to initiate an investigation with its decision numbered 24-01/8-M against 10 undertakings and associations of undertakings operating in the white meat sector to find out whether they violated Article 4 of the Law by exchanging competitively sensitive information, practising RPM and imposing non-compete obligations, territorial restrictions and customer foreclosures on its buyers.
• At its meeting on 11.01.2024, the Board decided to open an investigation with decision 24-03/23-M against Çiçeksepeti İnternet Hizmetleri A.Ş. to determine if it violated Article 6 of the Law by closing platform services to third parties and acting in favour of its own dealers.

Completed Investigations

The Board concluded the investigations against Electrolux Dayanıklı Tüketim Mamülleri Sanayi ve Ticaret A.Ş., Binboğa Üretim Pazarlama Sanayi ve Ticaret A.Ş. and Aksaray Unlu Mamulleri Gıda Sanayi ve Ticaret Ltd. Şti. for violations of Article 4 of the Law by practising RPM and/or imposing noncompete obligations and territorial restrictions.

Please see the table below regarding name of the undertaking, the type of violation of the Law and the amount of the administrative fine imposed by the Board within the scope of those investigations.

B- M&A Notifications:

During January, a total of 22 merger and acquisition notifications were made to the Board. The sectoral distribution of these is as follows;

- IT management & Software industry

• The transaction regarding the acquisition of joint control of Leadport Yazılım Teknolojileri Sanayi ve Ticaret A.Ş.by Sabancı ARF İnovasyon ve Ticarileştirme A.Ş., Alper Barut and Tekin Belek.
• The transaction regarding the acquisition of shares in Propars Teknoloji A.Ş. by Mega Merchant E-Ticaret Satış ve Pazarlama A.Ş. and/or its affiliate Mega Merchant Holdings Limited.
• The acquisition of sole indirect control of UserWay Ltd. by KKR & Co. Inc. through Access Group Purchaser, Inc. which is indirectly controlled by KKR & Co. Inc.
• The transaction related to the acquisition of full control over Brotek Teknoloji A.Ş., by Kariyer.Net Elektronik Yayıncılık ve İletişim Hizmetleri A.Ş., which currently holds 52% of the shares.
• The acquisition of sole control of MIM Software Inc. by GE Healthcare Technologies, Inc.

- E-commerce industry

• The transfer of joint control of Ikas Teknoloji Anonim Şirketi to Mustafa Namoğlu, Revo Capital Fund II B.V., Re-pie Portföy Yönetimi A.Ş., İkas Girişim Sermayesi Yatırım Fonu and International Finance Corporation.

- Healthcare & Pharmaceuticals industries

• The acquisition of 100% of the shares in IDC Uluslararası Diyaliz Merkezleri Ltd. Şti, Fresenius Sağlık Hizmetleri A.Ş. and Fresenius Nefroloji Hizmetleri A.Ş by Daviva Renal Yönetim Hizmetleri A.Ş.
• The acquisition of control of Barentz Holding B.V. by Cinven Limited.
• The acquisition of 51% of the shares in Farmasol Tıbbi Ürünler Sanayi ve Ticaret A.Ş. by Pollet Medical Group N.V.
• The acquisition of 80% of the shares representing the total capital and sole control of Kemer Medical Center Özel Sağlık Hizmetleri Turizm ve Ticaret Anonim Şirketi by Koç Holding A.Ş.

- Cement & Iron and Steel Industries

• The acquisition of 100% of the shares in Öncü Çimento Yatırım Anonim Şirketi by AC Çimento Sanayi ve Ticaret A.Ş.
• The acquisition of sole control of Metser Demir Çelik Çimento Sanayi ve Ticaret A.Ş. by Speyside I GP through Opta Germany Holding GmbH.

- Travel & Tourism Industry

• The acquisition of all the shares in iDATA Danışmanlık ve Hizmet Dış Ticaret A.Ş. by BLS International FZE, UAE.
• The transfer of a majority of the shares and sole control of Tripenia Bilişim Turizm Seyahat Acentası ve Ticaret A.Ş. to Ahmet Akyol.

- Mining industry

• The acquisition of 99.98% of the shares in Samaş Sanayi Madenleri AŞ ("SAMAŞ") by OYAK Birleşik Enerji A.Ş.; the acquisition of the Karben Brand by SAMAŞ from Karben Bentonit Endüstriyel Madencilik Kimya AR-GE Nano Teknolojileri Sanayi ve Ticaret AŞ ("KARBEN") and the acquisition of KARBEN Customer Agreements signed by SAMAŞ with KARBEN's customers regarding bentonite sales.

- Food & Retail Industries

• The acquisition of 49.04% of the total capital of Tat Gıda Sanayi A.Ş. by Memişoğlu Tarım Ürünleri Tic. Ltd. Şti.
• The acquisition of the tenancy rights and the fixed assets of six stores of Fatih Özbabacan Gıda Dış Ticaret Limited Şirketi by Migros Ticaret A.Ş.

- Banking & Financial Services Industry

• The acquisition of sole control of Vector Yatırım Holding A.Ş. and Tam Finans Faktoring A.Ş. by MNT Investments B.V.

- Logistics & Shipping industries

• The acquisition of all the shares in NHL Sağlık Lojistiği Hizmetleri A.Ş. by Netlog Lojistik Hizmetleri A.Ş.
• The establishment of a new joint venture between DSV Solutions Holding A/S, a subsidiary of DSV A/S, and NEOM Company, a subsidiary of Public Investment Fund.
• The acquisition of joint control of Italo-Nuovo Trasporto Viaggiatori S.p.A. by GIP III Global Investments S.à r.l. and SAS Shipping Agencies Services S.à r.l.

- The Recycling and Reuse Industry

• The acquisition of control of Gama Recycle Sürdürülebilir Teknolojiler A.Ş. by Öncü Girişim Sermayesi Yatırım Ortaklığı A.Ş.

C- Other Decisions

Turkic States Competition Council Established

The Competition Council of Turkic States was established on 23 January 2024 in Istanbul. The new organisation brings together the competition authorities of the Turkic States, including Azerbaijan, Kazakhstan, Kyrgyzstan, Türkiye, the Turkish Republic of Northern Cyprus, and Uzbekistan, and is aimed at promoting the exchange of information and knowledge in the areas of investigative, regulatory, enforcement and methodological expertise, creating favourable conditions for the development of regional cooperation and enhancing advocacy in the member and observer countries. The Hungarian Competition Authority also joined the Competition Council of Turkic States as an observer.

Summary of Key Decisions

The Board rendered 84 decisions in January:

• 8 decisions regarding breaches of competition law
• 54 decisions regarding merger and acquisition notifications
• 22 decisions regarding other matters

A- Breach of Law Decisions:

The investigations conducted against companies operating on the cosmetics and personal care products market to determine whether they violated Article 4 of the Law have been finalised.

The investigations have been concluded as follows:

The Board also evaluated the commitment letters submitted by Iveco Araç Sanayi ve Ticaret A.Ş., 6 a company operating in the heavy commercial vehicles market, and Yıldırımoğlu Fermantasyon Gıda San. ve Tic. A.Ş., 7 a company operating in the fast-moving consumer goods market, within the scope of the investigations carried out to determine whether these companies violated Article 4 of the Law by imposing regional and customer restrictions. Since the final commitment texts submitted by both companies are considered capable of eliminating the competition problems identified within the scope of the file, the Board decided to accept the commitments and to conclude the relevant investigations.

B- M&A Decisions

The Board decided on 22 transactions that were considered to be technology undertakings. The subject and relevant product markets of the related transactions are as follows:

Non-Life Insurance Services, Reinsurance Services, Coinsurance Services Market

In its decision[8] dated 17 August 2023, the Board approved the acquisition of sole control over Gulf Insurance Group K.S.C.P. by Fairfax Financial Holdings Limited through Fairfax (Barbados) International Corp., concluding that there will be no significant decrease in effective competition as a result of the transaction subject to the notification.

Online Used Passenger Cars and Light Commercial Vehicles Sales Market, Used Passenger Cars and Light Commercial Vehicles Sales Services Market

In its decision[9] dated 17 August 2023, the Board approved the acquisition of all the shares in Letgo Mobil İnternet Servisleri ve Ticaret A.Ş. and Letgo Services B.V. by Hedef Araç Kiralama ve Servis A.Ş., concluding that there will be no significant decrease in effective competition as a result of the transaction subject to the notification. In addition, the Board decided that the acquisition of Pilot Garage Otomotiv A.Ş. by Hedef Araç Kiralama ve Servis A.Ş. is not subject to approval since it does not lead to a change of control.

Sales of Passenger Cars and Light Commercial Vehicles Distributed by Doğuş Group, Spare Parts Sales, After Sales Maintenance and Repair Services Market

In its decision[10] dated 1 June 2023, the Board approved the acquisition of immovables owned by Doğuş Otomotiv Servis ve Ticaret AŞ in Osmangazi district of Bursa province by ARCA Grup Otomotiv İnşaat Sanayi ve Ticaret AŞ for automotive sales and aftersales services, concluding that the transaction did not lead to a significant lessening of effective competition. The Board stated in its decision that the transaction is subject to approval since the turnover can be calculated on the basis of the value of the immovables subject to the transfer.

C- Other Decisions

The Board's findings and fines imposed on companies in connection with the preliminary investigations and inquiries regarding the prevention and obstruction of the on-site examination of the companies in question were concluded as follows:

Saint Joseph French High School Decision[16]

Within the scope of the investigation conducted pursuant to the Board's decision dated 10 November 2022 and numbered 22-51/766-M, the Board requested detailed information regarding the additional course fees of all Turkish teachers working at the undertaking. However, it was determined that Saint Joseph French High School provided false/misleading information in a way which would cause the parameters determining the teacher salaries to be determined incorrectly. Therefore, within the framework of subparagraph (c) of paragraph 1 of Article 16 of the Law, the Board decided to impose an administrative fine on Saint Joseph French High School at the rate of 0.1% (one per mille) of the annual gross revenues at the end of the fiscal year 2022. However, since this amount cannot be below the lower limit foreseen under the applicable legislation, an administrative fine of TRY 105,688.00 was imposed.

Summary of Important Decisions of the EU Commission

Online Rail Ticket Distribution in Spain [17]

In April 2023, The European Commission ("Commission") initiated a formal investigation over concerns that Renfe may have abused its dominant position in the Spanish passenger rail transport market by refusing to provide rival ticketing platforms with: (i) full content concerning its range of tickets, discounts and features; and (ii) realtime data (pre-journey, on-journey or post-journey) related to its passenger rail transport services.

The Commission preliminarily found that Renfe's refusal to provide its full content and real-time data may have prevented rival platforms from competing with Renfe's own direct digital channels to the detriment of consumers. Such behaviour may breach EU competition rules, which prohibit the abuse of a dominant position (Article 102 of TFEU). In response to these competition concerns, Renfe submitted its commitments and the Commission concluded that the final commitments would address its preliminary competition concerns over Renfe's alleged abuse of a dominant position in the Spanish online passenger rail ticket distribution market. It therefore decided to make them legally binding on Renfe.

Farmed Atlantic Salmon Cartel Case [18]

The Commission informed Norwegian salmon producers Cermaq, Grieg Seafood, Bremnes, Lerøy, Mowi and SalMar of its preliminary view that they breached EU antitrust rules by colluding to distort competition in the market for spot sales of Norwegian farmed Atlantic salmon in the EU. The Commission has concerns that, between 2011 and 2019, the six salmon producers, exchanged commercially sensitive information, relating to sales prices, available volumes, sales volumes, production volumes and production capacities, as well as other price-setting factors. If the Commission concludes, after the parties have exercised their rights of defence, that there is sufficient evidence of an infringement, it can adopt a decision prohibiting the conduct and imposing a fine of up to 10% of a company's annual worldwide turnover.

[1] Decision of the Board dated 17.08.2023 and numbered 23-39/738-253.

[2] Decision of the Board dated 06.04.2023 and numbered 23-17/314-104.

[3] Decision of the Board dated 23.03.2023 and numbered 23-15/252-83.

[4] Decision of the Board dated 30.03.2023 and numbered 23-16/284-98.

[5] Decision of the Board dated 30.03.2023 and numbered 23-16/284-98.

[6] Decision of the Board dated 01.06.2023 and numbered 23-25/467-160.

[7] Decision of the Board dated 05.07.2023 and numbered 23-29/568-193.

[8] Decision of the Board dated 17.08.2023 and numbered 23-39/751-260

[9] Decision of the Board dated 17.08.2023 and numbered 23-39/753-262

[10] Decision of the Board dated 01.06.2023 and numbered 23-25/482-165

[11] Decision of the Board dated 17.08.2023 and numbered 23-39/742-256.

[12] Decision of the Board dated 11.05.2023 and numbered 23-21/407-138.

[13] Decision of the Board dated 22.06.2023 and numbered 23-28/530-179.

[14] Decision of the Board dated 07.09.2023 and numbered 23-41/788-277.

[15] Decision of the Board dated 17.08.2023 and numbered 23-39/717-246.

[16] Decision of the Board dated 13.04.2023 and numbered 23-18/324-109

[17] Case dated 17.01.2024 numbered AT.40735

[18] Case dated 25.01.2024 numbered AT.40606