Two-minute Recap of Turkish Competition Law Developments - October 2024

Insufficient Commitments, Please Try Again Later

Turkish automobile player Tofaş is gearing up to acquire Stellantis’ distribution business in Türkiye for EUR 400 million. On 24 October the Turkish Competition Authority (“TCA”) announced that commitments submitted by the applicants are insufficient to remedy its concerns and subsequently initiated a phase II review.

The announcement can be viewed here.

TCA Follows Council of State’s Approach on Ne Bis İdem

The TCA previously fined Samsung EUR 6 million for resale price maintenance (“RPM”) practices occurring over three years between May 2018 and July 2021. A newly published TCA decision, however, has revealed that a new complaint, with overlapping (15.03.2021 to 22.10.2022) - but not identical - dates, was filed after the investigation ended. The TCA has therefore assessed whether this requires fresh proceedings or amendment of the fine.

The authority stated that the principle of ne bis idem precludes it from initiating a new investigation. In coming to its decision it analyzed: (i) the nature of the acts; (ii) the offender; and (iii) the protected legal interest. It concluded there was no evidence of infringing RPM practices after the final decision and therefore the new complaint can be considered part of the original penalized act. It further noted that the fact the newly submitted documents concerned different products (i.e. tablets) was irrelevant as it is the act and not the outcome in different product markets which is salient. In doing so, the authority has followed the Council of State’s Mey İçki decision when the high court quashed a lower court judgment urging the TCA to consider outcomes in different product markets.

Moreover, the identity of the offender, i.e. Samsung, was the same and since the case solely concerned competition law the protected legal interest was also identical. Regarding amendment of Samsung’s fine, the TCA noted that the infringement’s new duration would be approximately four years instead of three. Since increases to fines are only required for violations occurring over five years no amendment would be made.

New Opportunities = Full Functionality?

The TCA recently cleared creation of a greenfield joint venture between BP p.l.c. and Equinor ASA. On assessment of full functionality, the TCA questioned whether the new JV would be dependent on its parent companies for sale and purchasing activities.

The authority noted that the JV was limited to three clients, two of which are subsidiaries of its parent companies. However, this may be necessary to establish the JV in the market provided it trades with its parent companies under normal conditions.

Regarding sales to parent companies, the TCA further noted that gaining 50% of its turnover from third parties would be an indication the JV was fully functionality. It also observed that though the parties were unable to provide an exact figure, new undertakings entering the market could become new clients – which the parties argued meant that third party business could eventually constitute the majority of sales. On these facts the TCA considered the JV fully functional.

Threads Leaves Türkiye After 70 Days

The TCA previously implemented interim measures to prevent Meta combining data obtained from Instagram with Threads. Subsequent to meetings between the parties, Meta’s proposal was deemed insufficient to meet said interim measures and a daily monetary fine was imposed.

Meta subsequently closed Threads in Türkiye. According to the TCA’s newly published decision, Meta informed them the action was taken to comply with its interim measures and that the profiles of Turkish customers have been disabled. The TCA therefore ruled that Threads’ closure voided the interim measures and Meta should now be deemed compliant with them.

While the exact amount of the fine was not disclosed it was calculated based on 0.05% of Meta’s annual turnover for the 70-day duration of the violation.

Grab Your Cameras

In an announcement regarding recently initiated investigations into the Turkish cinema and television sectors, the TCA addressed rumors they were aimed at hindering domestic show imports. The authority stated the investigations arise from multiple complaints regarding the barriers faced by various domestic content producers in production, sales and distribution.

Multiple areas including content creation, distribution, exhibition, and marketing are subject to detailed assessment. The TCA noted the investigation is pursuant to its aim of creating a free and competitive market for all stakeholders.