Turkey: The Board published its reasoned decision concluding the preliminary investigation against Media Barometer service of Diye Danışmanlık Eğitim ve Medya Hizmetleri Tic. A.Ş.

Last Updated: 3 August 2015
Practice Guide by ELIG, Attorneys-at-Law

The Board published its reasoned decision concluding the preliminary investigation against Media Barometer service of Diye Danışmanlık Eğitim ve Medya Hizmetleri Tic. A.Ş. and the service-using advertisers, and its service of letter, indicating that Media Barometer services should cease (12.12.2014, 14-51/900-410)

The Board published its reasoned decision on its preliminary investigation on the allegations that (i) Diye Danışmanlık Eğitim ve Medya Hizmetleri Tic. A.Ş. (“Diye”) abused its dominant position in the market for media auditing services by facilitating the establishment of a cartel in the market for television channels’ advertisement space, and (ii) the undertakings receiving media auditing services from Diye are engaging in a “buying cartel” concerning the prices for advertising spaces.

The Board defined the relevant product market with respect to the Media Barometer service provided by Diye as “the market for the comparison services of media purchasing conditions for advertisers”. It defined the relevant product market in which the information gathered within the price pool of Media Barometer as “the market for the purchase of television channels’ advertisement spaces”.

The Board asserted that the allegations on “facilitating the establishment of a cartel in another market” would fall within the scope of Article 4 of Law No. 4054 on the Protection of Competition (“Law No. 4054”), which prohibits anti-competitive agreements. The Board stated that the alleged boycotts of advertisers benefiting from the Media Barometer system either could not be investigated since the statute of limitations had already expired, or could not be supported with any information or document. As a result, the Board concluded that a full-fledged investigation on the allegations brought forward with respect to the boycott plan was not called for in this instance.

The Board found no evidence proving that the information exchange for Media Barometer price pool constitutes a violation in and of itself. The Board, however, stated that even though there was no document proving a price fixing agreement between Media Barometer users, this system could have certain effects on the advertisement unit time prices and payment terms. Media Barometer (i) could have similar effects as an agreement for exchanges of price information given the content, frequency and currency of the information shared by Diye, and (ii) raises certain competitive concerns regarding the prices and payment terms in the market for TV advertisement space.

The Board indicated that even if the number and the position of Media Barometer users remain the same, the system would still raise competitive concerns. Under Article 9(3) of Law No. 4054, the Board may inform the undertakings about the violation of Law No. 4054 by delivering a letter, and order them to cease the violation, and warn them that a failure to comply with the 9(3) letter would trigger further action by the Turkish Competition Authority. Accordingly the Board did not initiate a full-fledged investigation because there was no oral or written anti-competitive agreement so it found sufficient to submit a letter pursuant to Article 9(3) of Law No. 4054, indicating that the relevant undertakings should stop the relevant activities, otherwise further action will be taken pursuant to Law No. 4054.

Two of the Board members provided their dissenting opinions on the file, indicating that sending out a 9(3) letter conflicts with the logic of competition law and the precedents of the Board if no full-fledged investigation were launched. A full-fledged investigation should be initiated in cases where the Board is not convinced that there is no violation. Accordingly, the dissenting opinions provide that the Board should have analyzed whether the information exchange could benefit from individual exemption before issuing a 9(3) letter.

Recently, the 3rd Administrative Court in Ankara rendered a suspension of execution decision (E.2015/101, 13.07.2015) regarding Diye’s request for suspension of execution and annulment of Diye decision. The suspension of execution decision is on the grounds that “the execution of the administrative action subject to this lawsuit would result in damages which are difficult or impossible to compensate for”. The decision states that the Media Barometer System does not violate Article 4 of Law No. 4054; therefore, Diye is not in compliance with the law. In light of this recent development, the customers may continue to freely receive the Media Barometer services so long as a new judicial decision is not rendered or an administrative status is not established. The 3rd Administrative Court’s decision also indicates that the damages incurred by Diye due to ceasing its activities pertaining to Media Barometer system have no legal ground.

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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