Two-Minute Recap of Recent Developments in Turkish Competition Law – January & February 2023

During January and February, the Turkish Competition Board (the “Board”) published eighty-one reasoned decisions and approved seventeen merger and acquisition transactions in total. The highlight of Turkish competition law during this period was that the Board initiated ten new full-fledged investigations, concluded five on-going investigations, and decided to postpone oral hearings of four investigations regarding various sectors.

January 2023

The Competition Authority published its decision statistics for 2022 In January 2023, the Authority published the statistics report regarding the Board’s decision in 2022. As per the report, which involves the overall decisions in 2022, the Board issued 386 decisions, 64% of which (238) were merger control decisions. Among the high points of the report were: (i) the Board concluded a total of 29 in-depth investigations in 2022, of which 12 were concluded via settlement and three with commitments, and (ii) in 2022 the Board imposed a total amount of fines of approximately EUR 107 million. The total number of on-going investigations was 45 as at end-2022. Please refer to the infographic on this page, which outlines the Board’s activities in 2022.

The Board Reviews Its Decision on House-Hold Appliance Manufacturers

On 26 January, the Turkish Competition Authority (“Authority”) announced that it is reviewing its decision on the white goods manufacturers Whirlpool and Vestel in accordance with the Regional District Court’s decision that annulled the Board’s previous decision in 2019 on Vestel and Whirlpool.

In the Board’s 2019 decision, the Board examined the allegedly confidential agreement between the undertakings regarding authorised services. However, as a result of the decision, the Board concluded to not open an investigation against the undertakings and decided that the agreement in question benefited from the safe harbour granted by block exemption rules.

Tractor Manufacturers Are on the Board’s Agenda

As per the Authority’s announcement on 31 January, the Board launched an investigation regarding the market of tractor manufacturing and marketing. Accordingly, the activities of ten tractor manufacturers, including recognised brands such as Kubota and Deutz Fahr, will be scrutinised by the Board.

Consecutive Investigations by the Board Against Private Schools in Ankara and Istanbul

On 12 January, the Authority announced the launch of two separate investigations against several private schools, including five of the private French secondary education institutions in İstanbul and several schools based in Ankara. According to the announcements, the Board will scrutinise the allegations of price fixing made against the private French schools in İstanbul, together with the claims of competition law infringement involving eight private schools based in Ankara.

The Board Launches Investigation Against Major FMCG Companies

On 5 January, the Authority announced the launch of an investigation against four of the major FMCG companies in Turkey, namely Eti, Danone, Nestlé and Ülker. Accordingly, the Board’s investigation will cover allegations of information exchange among the mentioned four companies.

Enquiry Against Nestlé for the Second Time

Subsequent to the investigation that was initiated on the grounds of exchanging competitively sensitive information, the Board launched another investigation against the Swiss FMCG company Nestlé. On 5 January, the Authority announced that the Board will investigate claims involving resale price maintenance together with the alleged restriction put on the distributors' regions and customers.

The Board Publishes Another Resolution Regarding Digital Platforms

On 17 January, the Board published its reasoned decision pertaining to one of the principal e-commerce platforms in Turkey, Trendyol. In the said decision, the Board concluded its preliminary investigation against Trendyol, which concerns allegations involving:

• resale price maintenance through forcing member restaurants to participate in discount campaigns;
• hindering member restaurants from working with competitor digital platforms;
• imposing most-favoured-customer (MFC) clauses on member restaurants on behalf of itself;
• preventing the data portability of resellers operating on several of its platform services.

After a thorough assessment of the information and agreements obtained from the well-known e-commerce platform, the Board’s final evaluations can be summarised as follows:

• The findings indicate that, in general, Trendyol does not force member restaurants to participate in discount campaigns, but rather such campaigns are optional to participate in for restaurants.
• The exclusivity and MFC clauses in the agreements regarding online food delivery between Trendyol and member restaurants do benefit from the block exemption on the grounds that Trendyol’s market share during the relevant periods is below the legal threshold of 30%, and such agreements do not include any clause contradicting the rules of the block exemption.
• The Board finds that the clauses regarding data portability aim only at preventing the possible lawsuits that may arise from the Law of Intellectual Property Rights and do not intend to prevent restaurants’ data portability on the grounds that such clauses: (i) have a narrowly-tailored scope by targeting mainly the images that are deemed as intellectual property within the scope of the Law of Intellectual Property Rights, (ii) neither can be monitored nor are monitored by Trendyol, and (iii) are not actively put in force.

In light of the above conclusions, the Board finalised its preliminary investigation by resolving as not to instigate an investigation against Trendyol.

February 2023

The Board Kicks off Another Investigation Against Google

On 2 February, the Turkish Competition Authority announced that the Board concluded its preliminary investigation by deciding to launch an investigation against Google. According to the announcement, the Board will scrutinise further the allegations of abuse of dominance in the search engines market.

Engineers Are Fined by the Board

According to the Authority’s announcement dated 1 February, the Board concluded its investigation on several of the engineers that are registered to the Union of Turkish Engineers and Architects in Antalya, a touristic city in the south of Turkey. The investigation, which was launched by the Board in October 2022, pertained to allegations of resale price maintenance. Accordingly, the Board concluded its investigation through settlements of all undertakings that involve nine engineers and one engineering company and decided to impose a total fine of approximately EUR 1,600.

The Board Is Still Very Strict on Online Sales Bans

On 3 February, the Turkish Competition Authority published the Board’s reasoned decision on Marlin, the Turkish seller of many global shoe brands (i.e., FILA and Asics) as well as on Olka, the manufacturer and distributor of the Skechers shoe brand. It is noteworthy that the Board decided to involve both parties in the investigation on the grounds that both companies share a mutual stakeholder.

The allegations that led to the Board’s investigation mainly centred around the activities of the maintenance of the resale prices of dealers, together with the restriction of the online sales through e-commerce platforms of the dealers. Accordingly, the Board resolved the investigation with the following assessments:

• Olka and Marlin actively interfered with the sales prices of their dealers.
• The said companies compelled dealers to remove the discounts applied by dealers in the marketplaces, brick-and-mortar stores and on the websites operated by such dealers and compelled dealers to equate their sales prices with the prices applied in retail sales.
• In addition to the coercion imposed on dealers to remove their discounts, Olka and Marlin actively warned dealers to revise their discounted prices.
• Furthermore, the authorised personnel of Olka and Marlin made an active effort to sell products at the same retail prices in all sales channels.

As per the findings gathered during the on-site inspections, the Board concluded that Olka and Marlin:

• closely monitored their dealers in terms of whether or not any discounts were applied by the dealers;
• intervened in the discounted prices of the dealers; and
• requested that the prices be revised according to the recommended price list shared by Olka/Marlin.

Based on these assessments, the Board concluded that Olka and Marlin engaged in the maintenance of the resale prices of its dealers and imposed restrictions on the internet sales of the dealers through e-marketplace platforms. Accordingly, the Board resolved to impose administrative fines on the aforementioned undertakings. The fine was reduced as a consequence of the settlement procedure and imposed in the total amount of approximately EUR 396,000.

Tagged with: Gen & Temizer | Özer, Bulut Girgin, Ceren Ceyhan, Merve Zeynep Aydaş, Competition, Turkish Competition Board