Two-minute Recap of Recent Developments in Turkish Competition Law - August 2023

In August 2023, the Turkish Competition Board (“Board”) approved 19 merger and acquisition transactions.

During August the Board initiated 14 new, full-fledged investigations, concluded eight on-going investigations, and held oral defences for six investigations. Also in August, the Turkish Competition Authority (“Authority”) published its 24th annual report regarding its activities in 2022.

First-ever merger commitment violation in Turkey: ne bis in idem swoops in to save the day

On 28 August 2023, the Board announced that it had concluded its investigation into EssilorLuxottica S.A.’s (“EssiLux”) alleged anti-competitive practices. To understand the nature of the investigation, one must go back to the merger decision that formed EssiLux. In that decision, to obtain clearance, the merging parties offered both horizontal and vertical commitments. For horizontal commitments, the merging parties offered to divest a business, and for vertical commitments, they offered to not engage in tying and exclusivity. The investigation aimed to determine whether EssiLux breached its no exclusivity commitment.

With this final decision, the Board has concluded that EssiLux in fact breached its no exclusivity commitment and, at the same time, abused its dominant position. Accordingly, the Board stated that two set of fines should be imposed on EssiLux: one for the breach of commitments and one for abuse of dominance. However, the Board ultimately decided to impose only a daily fine for the breach of the commitment, referencing the ne bis in idem principle. That daily fine was calculated from 2018, which corresponds to a whopping 1,781 days (more than four years) and amounted to approximately to EUR 17 million.[1] You can access our detailed article on this decision here.

Board slaps another fine for preventing data portability

On 23 August 2023, the Board announced the conclusion of its investigation against Sahibinden Bilgi Teknolojileri Pazarlama ve Ticaret A.Ş. (“Sahibinden”).[2] The case concerned data portability issues in real estate and vehicle sales/rental platform services. The Board held that Sahibinden had made it difficult for its corporate members to use multiple platforms by preventing data portability by way of contractual and/or de facto exclusivity. As a result, the Board imposed a fine of approximately EUR 1.5 million on Sahibinden for abusing its dominant position.

To remedy the effects of the infringement and facilitate effective competition in the market, the Board imposed additional remedies, subject to strict reporting obligations:

• Reorganise the contracts signed with corporate clients to get rid of the infringing provisions and reporting thereof.
• Build infrastructure that will allow corporate clients to effectively port and keep up-to-date the real estate and vehicle ad data to rival platforms, free of charge.
• Build infrastructure that will allow corporate clients that have a membership in any of the rival platforms to enable the portability of real estate and vehicle ads to and keep them up-to date at Sahibinden’s platform, free of charge.

Board initiates investigation against Storytel for alleged exclusivity practices in the audiobooks market

On 4 August 2023, the Board announced the initiation of a full-fledged investigation against Storytel Turkey Yayıncılık Hizmetleri A.Ş., upon examining the findings at its disposal during the preliminary investigation phase. [3] The investigation revolves around whether Storytel prevents the entry of its rivals to the audiobook market via long-term exclusivity agreements with publishers and rightsholders. Currently the Board has not restricted the scope of its investigation to either Article 4 (akin to Article 101 TFEU) or Article 6 (akin to Article 102 TFEU) of Law No 4054 On the Protection of Competition (“Turkish Competition Law”).

Interim measures will continue to be applied during the 2023–2024 football season

On 8 August 2023, the Board released a statement regarding the extension of the duration of the interim measures against Krea İçerik Hizmetleri ve Prodüksiyon A.Ş. (“Krea”), in accordance with the Board’s previous decision[4] (“Interim Measures Decision”). To re-cap, the Interim Measures Decision examined the allegations that Krea, which holds the exclusive broadcasting rights of Turkish Super League and First League, was engaged in differential treatment.

With this statement, the Board announced that it extended the duration of the interim measures. The interim measures aim to prevent any of the broadcasters to broadcast footage before the time frame stipulated under the contract.

RPM fines for everyone

On 9 August 2023 the Board announced the conclusion of its retail price maintenance investigation against Samsung,[5] LG[6] and SVS.[7] The Board imposed a total fine of approximately EUR 9 million on the three companies for breaching Turkish RPM legislation.