Competition Newsletter - May 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 March 2024.

COMPETITION MARKET OVERVIEW

ANNOUNCEMENTS

A-Investigation Announcements:

Recently Initiated Investigations

In its meeting of 7 March 2024, the Board decided to open an investigation with decision numbered 24-12/211-M against Yemek Sepeti Elektronik İletişim Perakende Gıda A.Ş. to determine whether the company violated Articles 4 and/or 6 of the Law by rendering the use of its own courier service mandatory within the scope of the online food ordering-service platform services and making the operations of member businesses difficult.

Completed Investigations

The Board concluded its investigations against:

ABC Deterjan Sanayi ve Ticaret A.Ş. with a settlement mechanism, due to its practice of resale price maintenance which violates Article 4 of the Law.

Oriflame Kozmetik Ürünleri Tic. Ltd. Şti., with a settlement mechanism, due to its practice of resale price maintenance which violates Article 4 of the Law.

Altıparmak Gıda Sanayi ve Ticaret A.Ş. and found that the company violated Article 4 of the Law by exchanging competitively sensitive information; it imposed administrative fines on the company.

Undertakings active in the egg viol market with a settlement mechanism for all the concerned undertakings, namely Dentaş Kağıt Sanayi A.Ş., Güneş Kalıplı Basma Kutu Ambalaj San. ve Tic. A.Ş., Güres Tavukçuluk Üretim Pazarlama Ticaret A.Ş., Keskinoğlu Tav. ve Dam. İşl. San. Tic. A.Ş., Özay Karton Ambalaj Gıda San. ve Tic. Ltd. Şti., and Yuva Viyol ve Ambalaj San. ve Tic. Ltd. Şti. due to their practice violating Article 4 of the Law.

The table below shows the name of the undertaking, the type of violation and the amount of the administrative fine imposed by the Board in investigations into exchanging competitively sensitive information, resale price maintenance (“RPM”), imposing non-compete obligations, restriction on internet sales, territorial restrictions and customer foreclosure on customers.

The Board's investigation dated 21 April 2022 and numbered 22-18/301-M regarding 20 undertakings on the labour market was concluded, with eight of the undertakings receiving administrative fines and 12 undertakings found not to have violated the Law. The administrative fines are as follows:

Other Investigation Announcements

D Elektronik Şans Oyunları ve Yayıncılık A.Ş. (Nesine.com) was fined TRY 77,708,195.55 for abusing its dominant position in the market for fixed odds betting games played by virtual bookmakers.

In the investigation initiated against Meta Platforms Inc., Meta Platforms Ireland Limited and WhatsApp LLC (“META”) in 2021, the Board decided that META abused its dominant position by combining data collected from Facebook, Instagram and WhatsApp services and imposed obligations on META to eliminate the violation. The deadline for the performing these obligations expired on 9 December 2023. As the proposals finally submitted by META to the Authority were found not to be sufficient, META must pay a daily administrative fine of TRY 4,796,152.96 until it submits sufficient proposals.

B-M&A Notifications:

During March, a total of 20 merger and acquisition notifications were made to the Board; the sectoral distribution of these is as follows;

Paint and Coatings Industry

Acquisition of all the shares and sole control of the coatings business of GREBE Holding GmbH by Kansai Paint Group.

Healthcare & Pharmaceuticals industries

Acquisition of sole control of Pascoe Pharmazeutische Präparate GmbH by Sidroga Gesellschaftfür Gesundheitsprodukte mbH.

Acquisition of sole control of Hanmi Science Co., Ltd. by OCI Holdings Co., Ltd.

Acquisition of sole control of Catalent, Inc. by Novo Holdings A/S.

IT management & Software industry

Indirect acquisition of sole control of Integrated Environmental Solutions Limited by investment funds advised by Apax Partners LLP.

Acquisition of sole control of Altium Limited by Renesas Electronics Corporation.

Acquisition of the shares in Kuantum Siber Güvenlik Yazılım İnternet Bilişim Sistemleri ve Danışmanlık Hizmetleri Sanayi Ticaret A.Ş. by İhlas Girişim Sermayesi Yatırım Ortaklığı A.Ş. through a capital increase.

Manufacturing industry

Acquisition of sole control of Orca Bidco Limited by an affiliate of Crane NXT, Co.

Acquisition of joint control of National Petrochemical Industrial Company by LyondellBasell Industries N.V. and Alujain Corporation.

Establishment of a new joint venture between DEUTZ AG and ZGC Development Group.

Payments & Financial Services industry

Acquisition of joint control of Midas Technology Corp. and its subsidiaries by Egem Eraslan, Portage Ventures III Investments LP and Spark Capital VII, L.P.

Acquisition of sole control of Yazara Payment Solutions Inc. by Global Payments Inc.

Intermediate Capital Group plc and Corporación J. Uriach, S.A. to acquire joint control over Grupo J. Uriach, S.L.U. and PAM Invest-Ineldea Santé SAS.

Defence industry

Establishment of joint control over ZSR Patlayıcı Sanayi Anonim Şirketi by Zirve Holding Anonim Şirketi, Senta Madencilik Sanayi ve Ticaret Anonim Şirketi and Topalipo a.s.

Iron and Steel Industries

Acquisition of sole control of Varzene Metal Sanayi ve Ticaret A.Ş. by TUSAŞ Motor Sanayi A.Ş. through the acquisition of 49% of the company’s shares belonging to İsmail Demirkaya.

Mining Industry

Acquisition of sole control of the Illawarra Metallurgical Coal business owned by South32 Limited, by an entity controlled by Golden Energy and Resources Pte Ltd.

Energy and Chemicals Industry

Acquisition of sole control of Evonik Superabsorber GmbH and Evonik Superabsorber LLC by ICI Holding SE.

Acquisition of sole control of Saras S.p.A. by Vitol Holding B.V.

Acquisition of ownership and full control of the movable assets in the thermal-combined cycle power plant of AGE Enerji Üretim AŞ by AKSA Energy Company Ghana Ltd.

Acquisition of KARGAZ Kars Ardahan Doğal Gaz Dağıtım Pazarlama Taahhüt Sanayi ve Ticaret A.Ş. and SERHAT Doğalgaz Dağıtım Sanayi ve Ticaret A.Ş. by Bahattin Demircan and Orhan Babaoğlu.

SUMMARY OF KEY DECISIONS

The Board rendered four decisions from 1 to 31 March 2024. All four decisions concerned merger and acquisition notifications.

M&A DECISIONS

Acquisition of Beğendik[1] and Yunus[2] stores by Migros

The Board has authorised the acquisition of the lease rights and fixed assets of seven stores of Yunus Market İşletmeleri Ticaret A.Ş. (“Yunus”) and the acquisition of eight stores of B Online Mağazacılık Hizmetleri Gıda Sanayi ve Ticaret A.Ş. (“Beğendik”) by Migros Ticaret A.Ş. (“Migros”), concluding that there will be no significant decrease in effective competition as a result of the transaction subject to the notification.

According to the Board’s statements, when the relevant markets for the Transaction are evaluated in terms of growth tendency, it is understood that the markets are not in a static structure, that the undertakings currently operating in the market are growing in the market by opening new stores. Commenting on the existing market rates of the concerned undertakings and their competitors, the Board concluded that fluctuations and changes may occur in the market shares of the market players if this growth trend continues, and that there is no impediment for the growth of the players in the market in this respect. The decision also sets out that Migros, which can benefit from economies of scale and scope, may create more competitive pressure on chain markets such as A101, BİM and ŞOK, and that these players will face increased competition as a result of the transaction.

Acquisition of joint control of Hamurlabs by Topkapı[3]

The Board has authorised the transaction whereby Topkapı Danışmanlık Elektronik Hizmetler Pazarlama ve Ticaret A.Ş. (“Topkapı”) will acquire joint control of Hamurlabs Elektronik Hizmetler Yazılım ve Ticaret A.Ş.(“Hamurlabs”). The Board stated that the main business of Hamurlabs is to provide software services for warehouse operations, which falls within the scope of a “technology undertaking” as per Article 4 of Communiqué No. 2010/4, and the relevant transaction is said to be subject to authorization regardless of the turnover thresholds.

Based on its evaluation, the Board decided that the transaction will not lead to any competitive concerns. That said, the decision required the revision of the duration of the non-compete Clause 15 of the Subscription and Shareholders Agreement to three years, and the revised non-compete clause will be considered as an ancillary restraint by the Board.

Acquisition of MNG by DHL group[4]

The Board rendered its decision on the acquisition of all of the shares and sole control of MNG Kargo Yurtiçi ve Yurtdışı Taşımacılık Anonim Şirketi (“MNG”) by Deutsche Post Beteiligungen Holding GmbH, an affiliate of DHL Group (“DHL”).

As regards the relevant market, the Board stated that it is possible to define sub-markets for cargo services market and the logistics sector based on criteria such as the size of shipments, delivery speed, destination and means of transport. After making a thorough analysis regarding the possible sub-market definitions, the Board decided against making a market definition, as the transaction would not lead to any competitive concerns in any of the alternative markets.

The decision sets out that a horizontal overlap between the activities of the transaction parties exists in domestic small package transportation services market and both a horizontal and a vertical overlap between the activities of the transaction parties exists in international fast small package transportation services market. Concluding that no competitive concerns would arise from these horizontal overlaps, the Board focused on analysing in detail the vertical overlap between the activities of the parties, considering any input foreclosure, customer foreclosure and coordination effects.

The Board concluded that, although DHL has considerable market share in the upstream market, the independent customers who receive services from MNG in the downstream market have a major stake in MNG’s total sales and the increase in the acquirer’s market share will be minimal as a result of the Transaction, so the acquirer is not expected to have an affinity for input foreclosure. The Board further concluded that, even if MNG shifts all of its purchases to DHL and stops receiving services from other suppliers, such suppliers may target alternative customers, considering that the number of customers in the downstream market is high and MNG is not an essential purchaser for the suppliers. The Board did not find any other coordination effects and subsequently authorised the transaction.

SUMMARY OF IMPORTANT DECISIONS OF THE EU COMMISSION

Apple Decision [5]

The European Commission (“EC”) has fined Apple more than €1.8 billion for unlawfully exploiting its dominant market position in the distribution of music streaming apps to iOS users via its App Store. The Commission's investigation revealed that Apple imposed constraints on app developers, prohibiting them from disclosing to iOS users the existence of alternative and more affordable music subscription services accessible outside the confines of the App Store.

The EC considers that Apple's position, which has persisted for almost a decade, has led many iOS users to pay significantly higher prices for music streaming subscriptions, due to the high commission fees Apple charges developers and the higher price passed on to consumers in the form of higher subscription prices for the same service in the Apple App Store.

To determine the level of the fine, the EC took into account the duration and gravity of the infringement, as well as Apple's total turnover and market capitalisation and the false information submitted by Apple as part of the administrative procedure. In this respect, in addition to the €1.8 billion fine imposed on Apple, the EC has also ordered Apple to remove the anti-steering provisions and to refrain from repeating the infringement or from adopting practices with an equivalent object or effect in the future.