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

Board rejects Nestle’s half-hearted commitment

The Competition Board (“Board”) initiated an investigation against Nestle for alleged resale price maintenance and active/passive sales restrictions. Nestle was willing to submit a commitment for active/passive sales restrictions but stated that it would not settle for the resale price maintenance allegations.

The Board stated that partially concluding the active/passive sales restrictions limb, while the investigation on resale price maintenance is ongoing, would not yield any procedural benefits by also considering Nestle’s market position. It thereby refused Nestle’s commitments. Usually, the Board rejects commitments due to procedural inapplicability (i.e., the legislation does not allow undertakings to submit commitments for severe and hardcore violations i.e., cartels and resale price maintenance). This is a rare occasion where the alleged offence was eligible for a commitment application but got ultimately rejected on procedural efficiency concerns.

Adidas under investigation – Round 2

In 2022, the Board initiated a preliminary investigation against Adidas on allegations of resale price maintenance practices. At the end of the investigation, the Board decided not to initiate a full-fledged investigation.

In a recent announcement published on the website of the Competition Authority (“TCA”), the TCA announced that it now initiated a fullfledged investigation against Adidas due to 12th Ankara Administrative Court annulling its previous decision.

The decision of the court is not published on the TCA website. It is therefore not possible at this stage to determine the reason for the annulment.

Ready from today to tomorrow? – Board approves bp Türkiye Deal

As the media widely reported, bp was seeking to sell its downstream business in Türkiye to Petrol Ofisi (“PO”) (owned by Vitol) for its exit from Türkiye. As required, a notification was also made to the TCA in December.

With its announcement on 19 September 2024, the TCA announced that the Board gave its approval to the transaction subject to the following commitments:

» PO to divest 115 fuel station with large majority to be completed within two years,

» PO shall not terminate any existing rental agreement with third parties at fuel storage facilities it will hold shares in, unless it is unreasonable for PO to do so,

» PO shall not exceed an annual storage capacity of 288.707 m3 at the ATAŞ Terminal and an annual storage capacity of 21.104,93 m3 at the Antalya Terminal owned by Çekisan, corresponding to 50% and 52%, respectively, of the total capacity of the facilities for a period of three years;

» PO shall use its voting rights not to relaunch operations in the future for the currently inactive Ambarli Storage Terminal and Çekisan’s Çekmece Terminal,

» PO shall not exceed 606 tons of sales volume in gas oil (kerosene) distribution for a period of three years,

» PO shall submit a report detailing the implementation results of the commitments to the Board every six months following the authorization of the transaction by the Board.

One noteworthy development was that the Board used the isochrone analysis for the first time to analyze the market at a deeper level. The details of the announcement can be viewed through this link.

One does not simply coerce its distributor to commit competition law infringement – A cautionary tale of Electrolux

The TCA recently published its reasoned decision on the resale price maintenance fine issued to Electrolux. The Board underlined that Electrolux had instructed its distributor Çetinler to coordinate and interfere with the resale prices of its resellers. The Board further noted that Electrolux sales comprised an important portion of Çetinler’s total turnover and therefore Electrolux’s influence to be significant on the undertaking. In this vein the Board considered Electrolux’s instructions to Çetinler as an aggravating circumstance and increased the fine by 15%.

Draft Guidelines on Practices in Labor Markets published – The TCA now accepts no excuses

The TCA has published its long-awaited draft Guidelines on Labor Markets for public consultation. The public consultation period expired on 27 September 2024.

The draft guidelines aim to provide information on the most common competition law infringements in labor markets. Our short article on the Guidelines can be viewed here.

New investigations announced

In addition to the investigation into Adidas’s resale price maintenance practices, the TCA announced the initiation of the below fullfledged investigations in September: