Turkey: Interface between Competition Law and Other Regulations

Last Updated: 10 March 2015
Practice Guide by ELIG, Attorneys-at-Law

Regulated markets like banking, telecommunications, energy, alcoholic beverages/tobacco and pharmaceuticals may sometimes suffer from lack of competition. Regulation can be defined as governments’ interference in the markets on an economical basis, by the hands of regulatory authorities which are established specifically for this purpose.

The most well-known Turkish regulatory authorities are, among others, BDDK for banking services market, BTK for telecommunication markets, EPDK for energy markets, and TAPDK for Alcoholic Beverages and Tobacco markets. Even though each market has its own regulatory authority and its own regulative legislations, the Turkish Competition Authority (“TCA”) is still the sole competent authority to examine the issues regarding Law No. 4054 on the Protection of Competition (“Competition Law”) in these markets.

On the other hand, the Competition Law provisions may conflict with sector specific regulations. In such cases, the principle of lex specialis derogat legi generali would be applicable, as a universal law principle. This principle suggests that when two or more laws regulating the same situation conflict, priority is given to the law which regulates more specific matters related to the situation. That being said, in some cases, companies applying the sector specific regulations—as the principle suggests—may be involuntarily infringing the Competition Law. If the Turkish Competition Board (Board) establishes an infringement of the Competition Law, it delivers its opinion to the regulatory authority on the conflicting provision and it suggests ways to terminate the conflict. Matters related to this procedure, including the applicable time frames, the final decision etc. are regulated in detail under Section 4 of the Competition Law.

Three of the most recent and prominent cases where the TCA exercised its powers with respect to the Competition Law in regulated markets are 12 Turkish Banks (08.03.2013; 13-13/198-100), Tüpraş (17.01.2014; 14-03/60-24) and Turkcell (19.12.2013; 13-71/988-414).

In 12 Turkish Banks, the TCA exercised its powers in the banking services market. In particular, the TCA initiated an investigation in 2011 on 12 Turkish banks (including three state-owned banks, private Turkish banks, and numerous international banks operating in Turkey), which was completed after almost two and a half years. The investigation aimed to determine whether the 12 banks concerned were engaged in anti-competitive agreements for fixing of credit card, deposit and credit interest rates. The Board concluded that the banks had a common understanding to fix credit card and/or deposit interest rates at a certain level and shared information with respect to this understanding. The Board referred to BDDK’s reports, opinion and regulations in its reasoned decision. However, the Board rendered the decision on its own, without BDDK’s interference. Finally, the Board imposed fines on all of the banks. The sum of the fines constitutes the highest collective fine ever in the financial sector, totaling an unprecedented TL 1.1 billion (approximately € 400 million according to the exchange rate at the time).

In Tüpraş, the TCA exercised its powers in the energy market. In particular, in 2014, the TCA concluded the high-profile competition law investigation against Tüpraş, Turkey’s biggest energy company and OPET, one of Turkey’s biggest fuel oil companies. The Board used EPDK’s reports, correspondences, regulations and opinions as a base of its decision. As a result of this investigation, the Board found that Tüpraş abused its dominant position through abusive pricing practices and through anticompetitive contracts. In fact, the Board concluded that Tüpraş’s prices, which are subject to EPDK’s regulation, were anticompetitive and constituted excessive pricing, thereby an abuse of dominant position. As a result, it imposed an unprecedented administrative monetary fine of TL 412 million (approximately € 148 million). This is the highest individual fine ever levied on a single company.

In Turkcell, the TCA exercised its powers in the GSM services market. The Board assessed claims from both Vodafone and Avea. In its claims, Vodafone stated that Turkcell was restraining its exclusive solution partner in the field of interface and technical support services for vehicle tracking systems (“Mobiliz”) from cooperating with the competing GSM service providers. Vodafone also claimed that Mobiliz, via an e-mail message to Vodafone’s solution partner in the field of vehicle tracking systems (“Filotek”), stated that Filotek needs to terminate its solution partnership status with Vodafone if it intends to maintain its relationship with Mobiliz, in an effort by Turkcell to take Vodafone out of the market. Similarly, Avea claimed that Turkcell was abusing its dominant position in the market for providing GPRS and UMTS services for vehicle tracking systems by way of executing de facto exclusive practices with the market leader firms in the market for providing support and maintenance services for vehicle tracking systems (such as Arvento and Mobiliz) and therefore closing the market and impeding competition. It finally reached the following conclusions: (i) Turkcell had a dominant position in the markets for vehicle tracking systems and for GSM services, (ii) Turkcell’s exclusive practices violated Article 6 of the Competition Law because they foreclosed the market to its rivals. As a result, the Board imposed fines on Turkcell. Additionally, the Board requested that Turkcell avoid the above-mentioned anti-competitive practices and inform the companies with which it maintained solution partnerships that there is no de facto or contractual obligation forbidding them to cooperate with its rivals and/or join the rivals’ promotions.

This document is not intended to create an attorney-client relationship. You should not act or rely on any information in this document without first seeking legal advice. This material is intended for general information purposes only and does not constitute legal advice. If you have any specific questions on any legal matter, you should consult a professional legal services provider.

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