Turkey: Recent Cases

Last Updated: 22 March 2018

The Board approved the transaction regarding the establishment of a joint venture between Bayerische Motoren Werke Aktiengesellschaft and Daimler AG(5.7.2018; 18-22/380-187).

The Turkish Competition Board (“Board”) approved the transaction regarding the establishment of a joint venture between Bayerische Motoren Werke Aktiengesellschaft and Daimler AG by bringing together their mobility services in five business fields namely car sharing services, ride hailing services, parking services, charging services as well as other (on-demand) mobility services for managing five joint ventures and the related brands and conducting licensing activities.

The Board approved the transaction regarding the acquisition of joint control over AmTrust Financial Services Inc. by Stone Point Capital LLC, Barry ZYSKIND, George KARFUNKEL and Leah KARFUNKEL(18.7.2018; 18-23/405-194).

The Turkish Competition Board (“Board”) approved the transaction regarding the acquisition of joint control over AmTrust Financial Services Inc. by Stone Point Capital LLC, Barry ZYSKIND, George KARFUNKEL and Leah KARFUNKEL indirectly through Evergreen Parent LP.

The Board approved the transaction regarding the acquisition of sole control over Mövenpick Hotels & Resorts Management AG by Accor S.A. (18.7.2018; 18-23/409-197).

The Turkish Competition Board (“Board”) approved the transaction regarding the acquisition of sole control over Mövenpick Hotels & Resorts Management AG by Accor S.A.

The Board decided that the transaction regarding the acquisition of sole control over Toledo Molding & Die, Inc. by Grammer AG is not subject to the approval of the Board (8.8.2018; 18-27/458-BD).

The Turkish Competition Board (“Board”) decided that the transaction regarding the acquisition of sole control over Toledo Molding & Die, Inc. by Grammer AG is not subject to the approval of the Board.

The Board granted an individual exemption to the Distributorship Agreement signed between Mutlu Holding A.Ş. and Alacakaya Petrol Ürünleri İnşaat Otomotiv Servis Hizmetleri Sanayi ve Ticaret Ltd. Şti.(8.8.2018; 18-27/446-216).

The Turkish Competition Board (“Board”) granted an individual exemption to the standard Distributorship Agreement that is signed between Mutlu Holding A.Ş. and Alacakaya Petrol Ürünleri İnşaat Otomotiv Servis Hizmetleri Sanayi ve Ticaret Ltd. Şti., since it met all the conditions set out under the Article 5 of Law No 4054 on the Protection of Competition. 

The Board approved the transaction regarding the acquisition of The Dow Chemical Company’s certain assets related to production, distribution and sale of extruded polystyrene by Ravago S.A. (8.8.2018; 18-27/453-222).

The Turkish Competition Board (“Board”) approved the transaction regarding the acquisition of the Dow Chemical Company’s certain assets related to production, distribution and sale of extruded polystyrene by Ravago S.A.

The Board approved the transaction regarding the acquisition of joint control over the public sector business of Aptean Parent Company Sarl. and Superion LLC and TriTech Software Systems Inc. by funds managed by Bain Capital Investors L.L.C. and Vista Equity Partners Management, LLC (8.8.2018; 18-27/462-225).

The Turkish Competition Board (“Board”) approved the transaction regarding the acquisition of joint control over the public sector business of Aptean Parent Company Sarl. and Superion LLC (presently solely controlled by funds managed by Vista Equity Partners Management, LLC.) and TriTech Software Systems Inc. (presently solely controlled by funds managed by Bain Capital) by funds managed by Bain Capital Investors L.L.C. and Vista Equity Partners Management, LLC.

The Board approved the transaction regarding the establishment of a joint venture between The Boeing Company and Safran Power Units USA, LLC (8.8.2018; 18-27/445-215).

The Turkish Competition Board (“Board”) approved the transaction regarding the establishment of a joint venture between The Boeing Company and Safran Power Units USA, LLC.

The Board approved the transaction regarding the acquisition of sole control over Frutarom Industries Ltd. by International Flavors & Fragrances Inc. (8.8.2018; 18-27/441-211).

The Turkish Competition Board (“Board”) approved the transaction regarding the acquisition of sole control over Frutarom Industries Ltd. by International Flavors & Fragrances Inc.

The Board approved the transaction regarding the acquisition of joint control over Elica PB India Private Limited by Whirlpool Corporation and Elica S.p.A. (8.8.2018; 18-27/437-207).

The Turkish Competition Board (“Board”) approved the transaction regarding the acquisition of joint control over Elica PB India Private Limited (which was solely controlled by Elica S.p.A. ) by Whirlpool Corporation and Elica S.p.A.

The Board approved the transaction regarding the acquisition of sole control over Aktiebolaget Rotech and Rotek Robotik ve Otomasyon Teknolojileri Sanayi ve Ticaret A.Ş. by ABB Ltd. (8.8.2018; 18-27/435-205).

The Turkish Competition Board (“Board”) approved the transaction regarding the acquisition of sole control over Aktiebolaget Rotech and Rotek Robotik ve Otomasyon Teknolojileri Sanayi ve Ticaret A.Ş. by ABB Ltd.

The Board launched a full-fledged investigation against Istanbul Custom Consultants Association (12.06.2018; 18-19/322-M).

The Turkish Competition Board (“Board”) has concluded the preliminary investigation conducted based on the allegations that Istanbul Custom Consultants Association has violated the Article 4 of Law No. 4054 on Protection of Competition (“Law No. 4054”).

The Board found that the relevant allegations and findings are serious and adequate, and decided to launch a full-fledged investigation through its meeting dated 12.06.2018 and decision numbered 18-19/322-M against İstanbul Custom Consultants Association in order to determine whether the relevant undertakings have violated the Article 4 of Law No. 4054.

The Board launched a full-fledged investigation against Novartis Sağlık Gıda ve Tarım Ürünleri San. ve Tic. A.Ş. and Alcon Laboratuvarları Ticaret A.Ş. (21.06.2018; 18-20/349-M).

The Turkish Competition Board (“Board”) has concluded the preliminary investigation conducted based on the allegations that Novartis Sağlık Gıda ve Tarım Ürünleri San. ve Tic. A.Ş. has abused its dominant position by way of refusal to supply and obstructing competition in the wholesale level of the pharmaceutical industry by preventing pharmacy warehouses from conducting sales to other pharmacy warehouses.

The Board found that the relevant allegations and findings are serious and adequate, and decided to launch a full-fledged investigation through its meeting dated 21.06.2018 and decision numbered 18-20/349-M against Novartis Sağlık Gıda ve Tarım Ürünleri San. ve Tic. A.Ş. and Alcon Laboratuvarları Ticaret A.Ş. in order to determine whether the relevant undertakings have violated of Law No. 4054.

The Board included three more undertakings to the investigation conducted against thirty two undertakings that are active in the market for mail-cargo transportation services (05.07.2018; 18-22/379-M (1)).

The Turkish Competition Board (“Board”) had previously launched a full-fledged investigation (18-05/77-M, 18-09/161-M and 18-09/162-M) against the undertakings listed below, in order to determine whether they have violated Law No. 4054 on Protection of Competition (“Law No. 4054”):

  • Airexpress Kargo Lojistik Dış Ticaret Ltd. Şti.,
  • Aras Kargo Yurtiçi Yurtdışı Taşımacılık A.Ş.,
  • Asilkar Lojistik Dağ. Hiz. İç ve Dış Tic. Ltd. Şti.,
  • MNG Kargo Yurtiçi ve Yurtdışı Taşımacılık A.Ş.,
  • Paket Taşımacılık Sistemleri ve Turizm Bilgisayar Ticaret A.Ş.,
  • Solmaz Nakliyat ve Ticaret A.Ş.,
  • STF Kargo Nakliyat Ticaret Ltd. Şti.,
  • TNT International Express Taşımacılık Ticaret Ltd. Şti.,
  • Ünsped Paket Servisi San. ve Tic. A.Ş.
  • Antrepo Lojistik Taşımacılık Kargo ve Kurye Hizmetleri Ticaret ve Sanayi Ltd. Şti.,
  • Aslansoy Yuba Lojistik İç ve Dış Tic. Ltd. Şti.,
  • Asset Lojistik A.Ş.,
  • Cemal Bozaslan,
  • CLG Express Uluslararası Taşımacılık A.Ş.,
  • Demirtaş Nakliye Tur. İnş. Gıda Canlı Hayvan Tic. Ltd. Şti.,
  • DFN Lojistik Hiz. San. ve Tic. A.Ş.,
  • DRN Lojistik A.Ş.,
  • Eli Uluslararası Taşımacılık ve Tur. Ltd. Şti.,
  • Gama Kombine Taşımacılık A.Ş.,
  • Gonca Palanduz UDT Loj. Taş. İth. İhr. Taşımacılık,
  • Hipex Dış Ticaret Halil İbrahim Palalı,
  • İnter Global Kargo Ticaret Ltd. Şti.,
  • Kevser Funda Sanlıman UKGS Uluslararası Kargo Gönderim Servisleri,
  • Serkan Çınar Çınartaş Grup,
  • Tuncay Işıklı GSP Uluslararası Taşımacılık ve Dış. Tic.
  • Turimex Global Lojistik Gümrükleme İç ve Dış Tic. Ltd. Şti.,
  • Yurtiçi Kargo Servisi A.Ş.
  • DHL Worldwide Express Taşımacılık ve Ticaret A.Ş.,
  • Sürat Kargo Lojistik ve Dağıtım Hizmetleri A.Ş.,
  • Kargo Dünya Uluslararası Taşımacılık ve Dış Ticaret Ltd. Şti.,
  • ASE Asya Afrika Hızlı Kargo ve Dağıtım A.Ş.,
  • On Ekspres Hava Kurye ve Kargo Uluslararası Taşımacılık Hizmetleri Ltd. Şti.

Through its meeting dated 05.07.2018 and decision numbered 18-22/379-M (1), the Board decided to launch a full-fledged investigation against Ekol Lojistik A.Ş., Öykü Lojistik A.Ş. and DHL Lojistik Hizmetleri A.Ş. and combine it with the investigation conducted through its decision numbered  18-05/77-M.

The Board launched a full-fledged investigation against Google Reklamcılık ve Pazarlama Ltd. Şti., Google International LLC, Google LLC and Google Ireland Limited (18.07.2018; 18-23/396-M).

The Turkish Competition Board (“Board”) has concluded the preliminary investigation conducted based on the allegations that Google obstructed its competitors’ activities in the market for online shopping services by way of abusing its dominant position in the general search market.

The Board found that the relevant allegations and findings are serious and adequate, and decided to launch a full-fledged investigation through its meeting dated 18.07.2018 and decision numbered 18-23/396-M against Google Reklamcılık ve Pazarlama Ltd. Şti., Google International LLC, Google LLC and               Google Ireland Limited in order to determine whether the relevant undertakings have violated the Article 6 of Law No. 4054 on Protection of Competition.

The Board launched a full-fledged investigation against eight undertakings that are active in the traffic signalization sector (18.07.2018; 18-23/395-M).

The Turkish Competition Board (“Board”) has concluded the preliminary investigation conducted based on the allegations that certain undertakings active in the traffic signalization sector engaged in concerted prices within tenders.

The Board found that the relevant allegations and findings are serious and adequate, and decided to launch a full-fledged investigation through its meeting dated 18.07.2018 and decision numbered 18-23/395-M against the undertakings listed below in order to determine whether the relevant undertakings have violated the Article 4 of Law No. 4054 on Protection of Competition:

  • Rayennur Elektronik Ulaşım Endüstrisi San. ve Tic. Ltd. Şti.,
  • Mosaş Akıllı Ulaşım Sistemleri A.Ş.,
  • Tandem Trafik Sistemleri Elektronik Bilgi İşlem Makina İnş. San. ve Tic. Ltd. Şti.,
  • İshakoğulları Sinyalizasyon Araç Kiralama Tic. Ltd. Şti.,
  • Buharalılar Trafik Sinyalizasyon Elektrik Elektronik San. ve Tic. Ltd. Şti.,
  • Asım Aytaç Bozer AAB Mühendislik San. Tic.,
  • Nurullah Çağatay Tiritoğlu NÇT İnşaat Taahhüt,
  • Matrisled Elektrik Elektronik İnş. Tic. Ltd. Şti.

The Board launched a full-fledged investigation against Red Bull Gıda Dağıtım ve Pazarlama Tic. Ltd. Şti (18.07.2018; 18-23/402-M).

The Turkish Competition Board (“Board”) has concluded the preliminary investigation conducted based on the allegations that Red Bull Gıda Dağıtım ve Pazarlama Tic. Ltd. Şti. has violated Law No. 4054 on Protection of Competition (“Law No. 4054”) by way of de facto exclusivity and resale price maintenance conducts. 

The Board found that the relevant allegations and findings are serious and adequate, and through its meeting dated 18.07.2018 and decision numbered 18-23/402-M launched a full-fledged investigation in order to determine whether Red Bull Gıda Dağıtım ve Pazarlama Tic. Ltd. Şti has violated the Article 6 of Law No. 4054.

The Board has pronounced its final decision on the full-fledged investigation conducted against Doğan Müzik Kitap Mağazacılık ve Pazarlama A.Ş. (02.08.2018, 18-24/428-201).

The Turkish Competition Board (“Board”) recently pronounced its final decision regarding the full-fledged investigation conducted against Doğan Müzik Kitap Mağazacılık ve Pazarlama A.Ş. The investigation was conducted in order to determine whether Doğan Müzik Kitap Mağazacılık ve Pazarlama A.Ş. has abused its dominant position by way of preventing new undertakings from entering the market and obstructing the competitors’ activities.

Through its meeting dated 02.08.2018 and numbered 18-24/428-201, the Board has decided that Doğan Müzik Kitap Mağazacılık ve Pazarlama A.Ş. did not violate the Article 6 of Law No. 4054 on Protection of Competition (“Law No. 4054”), and therefore did not impose any administrative monetary fines on the relevant undertaking under Article 16 of the Law No. 4054.

The Board has pronounced its final decision on the full-fledged investigation conducted against Enerjisa Enerji A.Ş., İstanbul Anadolu Yakası Elektrik Dağıtım A.Ş., Başkent Elektrik Dağıtım A.Ş., Toroslar Elektrik Dağıtım A.Ş., Enerjisa İstanbul Anadolu Yakası Elektrik Perakende Satış A.Ş., Enerjisa Başkent Elektrik Perakende Satış A.Ş. and Enerjisa Toroslar Elektrik Perakende Satış A.Ş. (08.08.2018; 18-27/461-224).

The Turkish Competition Board (“Board”) recently pronounced its final decision regarding the full-fledged investigation conducted against Enerjisa Enerji A.Ş., İstanbul Anadolu Yakası Elektrik Dağıtım A.Ş., Başkent Elektrik Dağıtım A.Ş., Toroslar Elektrik Dağıtım A.Ş., Enerjisa İstanbul Anadolu Yakası Elektrik Perakende Satış A.Ş., Enerjisa Başkent Elektrik Perakende Satış A.Ş. and Enerjisa Toroslar Elektrik Perakende Satış A.Ş. in order to determine whether the relevant undertakings have violated Article 6 of the Law No. 4054 on the Protection of Competition (“Law No. 4054”).

Through its meeting dated 08.08.2018 and numbered 18-27/461-224,

  1. The Board decided that undertakings listed below have violated the Law No. 4054, therefore, pursuant to Article 16(3) of Law No. 4054 and the Articles 5(1)(a), 5(2) and 5(3)(a),  of “Regulation on Fines to Apply in Cases of Agreements, Concerted Practices and Decisions Limiting Competition, and Abuse of Dominant Position” (“Regulation”), imposed administrative monetary fines on the relevant undertakings:
  • Enerjisa İstanbul Anadolu Yakası Elektrik Perakende Satış A.Ş. in the amount of TL 32,812,761.75,
  • Enerjisa Başkent Elektrik Perakende Satış A.Ş. in the amount of TL 38,499,247.43
  • Enerjisa Toroslar Elektrik Perakende Satış A.Ş. in the amount of TL 61,119,007.99
  1. The Board also decided to impose administrative monetary fines on İstanbul Anadolu Yakası Elektrik Dağıtım A.Ş in the amount of TL 10,630,720.95 pursuant to the Articles 5(1)(b) and 5(2) of Regulation.
  1. In addition, the Board decided that İstanbul Anadolu Yakası Elektrik Dağıtım A.Ş., Enerjisa İstanbul Anadolu Yakası Elektrik Perakende Satış A.Ş., Enerjisa Başkent Elektrik Perakende Satış A.Ş. and Enerjisa Toroslar Elektrik Perakende Satış A.Ş. should terminate the conducts that are in violation of competition law in scope of the Article 9 (1) of Law No. 4054.
  1. Lastly, the Board decided that Enerjisa Enerji A.Ş., Başkent Elektrik Dağıtım A.Ş., and Toroslar Elektrik Dağıtım A.Ş. did not violate the Article 6 of Law No. 4054 and therefore there is no need to impose any administrative monetary fines on the relevant undertakings.

The Board conditionally approved the acquisition of Mardaş Marmara Deniz İşletmeciliği A.Ş. by Limar Liman ve Gemi İşletmeleri A.Ş.( 08.05.2018; 18-14/267-129).

The Turkish Competition Board (“Board”) recently published its reasoned decision on the acquisition of Mardaş Marmara Deniz İşletmeciliği A.Ş. (“Mardaş”), which is active in the Ambarlı Port, by Limar Liman ve Gemi İşletmeleri A.Ş. (“Limar”). Limar conducts various activities in the maritime sector and controlled by Arkas Holding (“Arkas”). With the proposed transaction, Atak Holding A.Ş. (“Atak”) and Asmar Holding A.Ş. (“Asmar”) that control Mardaş will cease their activities in the relevant markets by transferring their activities related to container handling, bonded temporary storage, pilotage and towage and Ambarlı Port ancillary services to Limar. However, Atak and Asmar will not transfer its ship-ownership, ship charter, ship operation and agency services to Limar. After the notification to the Competition Authority, Arter Terminal İşletmeleri A.Ş. (“Arter”) became the party to the transaction instead of Limar.

Parties’ Activities

Arter currently has no activities and solely controlled by Limar which is a company under Arkas Group. Limar is active in port management in Ambarlı Port and provides equipment support, ship planning, operation, container damage detection, and reefer and storage management of empty container services. Furthermore, Arkas Group, the acquirer, provides agency, operation of a shipping line and logistics services integrated with port and sea, land, railway and air transport. In addition, Arkas Group also is active in refueling of vessels, automotive, insurance services, information systems and cruise tourism sectors.

Atak and Asmar are active in container handling, bonded temporary storage, pilotage and towage and Ambarlı Port ancillary services. On the other hand, Atak and Asmar has majority of the shares in İçdaş Çelik Enerji Tersane ve Ulaşım Sanayi A.Ş. (“İçdaş”) which is a company active in iron and steel sector. Mardaş, a company under the joint control of Atak and Asmar is active in container handling, bonded temporary storage, pilotage and towage and Ambarlı Port ancillary services.

Relevant Product Markets and the Overlaps between the Parties Activities

According to the Board, the main factor in identifying relevant product market for ports is the freight and the vessel type. In addition, the source of the freight, route, and equipment required during handling, the size of the vessels stop by the port, customer preferences and the alternative transportation in the logistic chain are also taken into consideration. In this regard, the Board stated that the transaction is mainly related to container terminal operation services sector and the activities of the target, Mardaş also include temporary storage, pilotage and towage and ancillary services.

Thus, assessing the Board and Commission’s previous decisions, the relevant product markets where the Parties’ activities horizontally overlap were identified as “container handling services”, which can be further broken down to “port management for container handling services concerning hinterland traffic” and “port management for container handling in regards to transit traffic”; “bonded temporary storage”, “pilotage and towage services” and “ancillary services at Ambarlı Port”. In addition, due to Arkas’s services related to ship agency and container transportation, the Board saw fit to assess the vertical relations between the parties. In this regard, the Board determined that “container liner shipping services” and “ship agency services” markets should also be taken into consideration in terms of the vertical effects that may arise due to the consummation of the transaction.

The Relevant Geographical Markets

Additionally, identifying the geographical market required considering different freight types separately since port services for each freight type differs.  As a result of this separation, port characteristics regarding general cargo and container freight vary on several bases, such as transference options, nearness to the production center and transportation costs. Definition of the geographical market in regards to container port management services were examined in Commission’s Hutchison/RCMP/ECT decision. The Commission ultimately examined container handling, hinterland terminal operating and terminal operating for transit transportation services separately and later proposed different geographical market definitions for hinterland and transit traffic, which ultimately was supported by sector representatives. Another decision of the Commission[1] followed a similar approach where container handling services were defined based on the hinterland and transit traffic conditions. Consequently, the Board defined the geographical market for port management for container handling service  concerning hinterland traffic  in this instance as the Marmara Region. In addition, in accordance with the abovementioned decisional practice, the relevant geographical market for container handling services market for hinterland traffic was defined as İstanbul. Lastly, the Board defined the geographical markets for “bonded temporary storage”, “pilotage and towage services” and “ancillary services at Ambarlı Port” as Ambarlı Port.

The Board’s Assessment on the Horizontal Effects of the Transaction

  1. Container Handling Services

The Board initially indicated that according to the information provided by UDHB (Ambarlı Liman Başkanlığı) the highest market shares in the Marmara Region are as follows; MARPORT by %34, EVYAPORT by %12,6 and ASYAPORT by %12,6 and MARDAŞ, which is the subject to the transaction at hand, follows with %5,2. Examining the downstream breakdowns, Northwest Marmara 2016 input data showed that %53,3 market shares were held by MARPORT, %19,7 by ASYAPORT, %18,8 KUMPORT and %8,2 by MARDAŞ.  Hence, in case the relevant geographical market is defined as Marmara Region, besides the acquisition of joint control over MARPORT, Arkas Group will also acquire 5.2% of the MARDAŞ shares.

The Board found that increase in capacity in regards to the Northeast and South Marmara regions were not expected to produce effect the Northwest Marmara ports. In this scope;

  1. Although the Board indicated that ARKAS Group operates via MARPORT, MARPORT as a joint venture should be recognized as an independent economic unit. Thus, upon the consummation of the transaction MARDAŞ is will be exiting the market and while ARKAS will be entering the market as the only player. As for the market shares of MARDAŞ,  shares in the Marmara Region is %5,2; where Northwest Marmara lower region shares are %8,2. In short, considering the potential market structure upon the consummation of the transaction; the Board did not consider that any undertaking would become dominant on its own, which would enable it to determine the market parameters independently from the competitors.
  2. Nonetheless, upon its review of the market structure and the fundamental concentration data, the Board determined that it is still possible for more than one undertaking to collectively hold a dominant position.  For as much, MSC, which is MARPORT’s other partner, is currently conducting its operations via managing ASYAPORT in the lower Marmara Region, which is the region that is expected to be the most by the transaction. In this regard, three out of four active ports within the Northwest Marmara region will be managed by MARPORT’s partners. While prior to the consummation of the transaction, MSC, ARKAS, KUMPORT and MARDAŞ’s shareholders operate within the Northwest Marmara region, that is the narrowest possible market definition, MSC and ARKAS’s overall shares within the market are expected to increase to %81,2 upon the consummation of the transaction and increase to %51,9 in the Marmara region.
  3. Even though the market has procompetitive characteristics such as countervailing buyer power or excess capacity and the fact that MARDAŞ concentrates on local freight could potentially lower the risk of coordination, it is evaluated that MSC and Arkas Group may nevertheless hold a collective dominant position in the market for port operations with respect to container handling services.
  4. Moreover, the fact that the relevant undertakings and the parent companies of the joint ventures are operating within the same market can raise competition law concerns in terms of Article 4 of the law No. 4054. This is due to the fact this will enable the Parties to determine prices through the independent economic unit that they are the parents of and determine their own prices within the same market.

As a result, although the economic analysis and the information collected during the Phase-II review may indicate that the geographical market may have been defined in wider manner and consequently MARDAŞ’s market share would be smaller; when MARPORT’s and ASYAPORT’s operational positions in both Marmara and lower Northwest Marmara regions and the fact that they are providing container line services are taken into consideration the Board determined that there was a risk of coordination. Moreover, considering ASYAPORT’s railway connections, the Board also found the risk of collective dominant position and effects that could arise due to collusion.

Remedies submitted in scope of the transaction

In light of the evaluations above, the Board concluded that the transaction cannot be cleared due to the potential anticompetitive effects that could arise due to the consummation of the transaction. In this respect, the Board moved on to the assessment of the remedies, which are concerned with the separation of MARPORT and MARDAŞ companies. In this scope, the legal and operational structures of MARPORT and MARDAŞ were to be completely differentiated and it was undertaken that the parties will not establish mechanisms that allow the exchange of commercially sensitive information between MARPORT and MARDAŞ .

The Board’s Assessment on the Vertical Effects of the Transaction

With regards to the Board’s vertical assessment, it was evaluated that Arkas Group’s ‘Container Ship Line Management Services’ is deemed as the downstream market whereas ‘Container Handling Services’ serve as their upstream market. In this perspective, while the Board concluded that %25 market share threshold provided in the Non-Horizontal Merger Guidelines is not exceeded in regards to both markets, it was also found that the potential vertical anticompetitive effects that could arise out of the transaction, since ARKAS, which is jointly controlling MARPORT, has four ports which operate within the lower Northwest Marmara Region. 

In this regard, the Board evaluated that the consummation of the transaction could give rise to input foreclosure and discriminatory conduct. In this regard, the Parties submitted the following commitments to remedy the potential vertical concerns that could arise out of the transaction:

  1. Not to change special tariffs and other commercial and operational terms for the following 36 months upon concluding the Share Transfer agreement except for legally valid instances (i.e. customs instructions) for feeder and/or main ship management service providers within container transportation market,
  2. Continuance of berthing, field usage capacity and other operational terms  upon concluding the Share Transfer Agreement, except for legally valid instances that are attributed to the feeder and/or main ship managers which provide services within container transportation market,
  3. Prerogative/Privelege of %30 on berthing and capacity of field usage without unfair terms and for the period of five years under the objective terms for MARDAŞ’s current or potential clients, local, feeder and/or main ship manager clients who carry all the freight to or from MARDAŞ lines,
  4. Not to amend the 2017 Standard Port Services Tariffs which is currently in effect and includes all service items determined by MARDAŞ for the period of 12 months upon concluding the Share Transfer Agreement except for legally valid instances (i.e. customs instructions),
  5. MARDAŞ to determine competitive prices, avoid unfair pricing and to submit information on tariffs to the Board upon request following the expiration of the time period of 12 months.

Subsequently, additional remedies were provided to further remedy the vertical concerns that could arise out of the transaction, such as the inclusion of potential clients and all lines to and from MARDAŞ in the scope of the remedies above and committing that services will be provided under objective commercial terms without the application of discriminatory terms to ARKAS and ARKAS’s competitors.

In light of the above, the Board conditionally cleared the transaction.


[1] Commission’s decision dated 05.06.2008 and numbered COMP/M.5066 ‘’EUROGATE/APMM’’.

The Board approved the transaction regarding the establishment of a joint venture by Koramic Holding N.V. and ElvalHalcor S.A., a subsidiary of Viohalco S.A., for the production of zinc products through NedZink B.V. (22.5.2018; 18-15/285-143).

The Turkish Competition Board ("Board") approved the transaction regarding the establishment of a joint venture by Koramic Holding N.V. and ElvalHalcor S.A., a subsidiary of Viohalco S.A., for the production of zinc products through NedZink B.V.

The Board approved the transaction regarding the establishment of a joint venture between The Goodyear Tire & Rubber Company and Bridgestone Corporation (22.5.2018; 18-15/274-135).

The Turkish Competition Board ("Board") approved the transaction regarding the establishment of a joint venture between The Goodyear Tire & Rubber Company and Bridgestone Corporation.

The Board approved the transaction regarding the establishment of a joint venture between GE Oil & Gas Panafricana Holdings I B.V. and Rosneft Oil Company (08.05.2018; 18-13/232-107)

The Turkish Competition Board ("Board") approved the transaction regarding the establishment of a joint venture between GE Oil & Gas Panafricana Holdings I B.V. and Rosneft Oil Company.

The Board approved the transaction regarding the acquisition of sole control over A. Schulman, Inc. by LyondellBasell Industries N.V. (03.05.2018; 18-13/232-107)

The Turkish Competition Board ("Board") approved the transaction regarding the acquisition of sole control over over A. Schulman, Inc. by LyondellBasell Industries N.V.

The Board has pronounced its final decision on the full-fledged investigation conducted against Microsoft Bilgisayar Yazılım Hizmetleri Ltd. Şti. (24.04.2018, 18-12/227-102).

The Turkish Competition Board ("Board") recently pronounced its final decision regarding the full-fledged investigation conducted against Microsoft Bilgisayar Yazılım Hizmetleri Ltd. Şti. in order to determine whether it has violated Article 6 of the Law No. 4054 on the Protection of Competition ("Law No. 4054") by its project called "3+ project" for the internet cafes.

The full-fledged investigation was initiated based on the annulment of the Board's decision on the case file, dated 07.12.2011 and numbered 11-60/1555-550, upon the 13th Council of State's decision dated 25.10.2016 and numbered 2012/1000 E.; 2016/3413 K.

Through its meeting dated 24.04.2018 and numbered 18-12/227-102, the Board has decided that Microsoft Bilgisayar Yazılım Hizmetleri Ltd. Şti did not violate Article 6 of the Law No. 4054, and therefore did not impose any administrative monetary fines on the relevant undertakings under Article 16 of the Law No. 4054.

The Board has pronounced its final decision on the full-fledged investigation conducted against Diye Danışmanlık Eğitim ve Medya Hizmetleri Tic. A.Ş.

The Turkish Competition Board ("Board") has pronounced its final decision on the full-fledged investigation conducted against Diye Danışmanlık Eğitim ve Medya Hizmetleri Tic. A.Ş in order to determine whether it has violated the Law No. 4054 on the Protection of Competition ("Law No. 4054") by way of abusing its dominant position and whether the advertisers that purchase "Media Barometer" services from Diye Danışmanlık Eğitim ve Medya Hizmetleri Tic. A.Ş have constituted a cartel.

The full-fledged investigation was initiated based on the annulment of the Board's decision on the case file, dated 12.12.2014 and numbered 14-51/900-410, upon the 16th Ankara Administrative Court decision dated 12.05.2016 and numbered 2015/2048 E., 2016/1534 K. and the approval of 6th Ankara Administrative Court decision by 13th Council of State's decision dated 28.02.2017 and numbered 2016/4373 E.

Through its meeting dated 24.04.2018 and numbered 18-12/228-103, the Board has decided that Diye Danışmanlık Eğitim ve Medya Hizmetleri Tic. A.Ş. did not violate the Law No. 4054, and therefore there is no need to impose any administrative monetary fines on the relevant undertaking under Article 16 of the Law No. 4054.

The Board launched an investigation against Abalıoğlu Yem Soya ve Tekstil A.Ş. (18.04.2018, 18-11/205-M).

Upon the 13th Council of State's decision, the Turkish Competition Board ("Board") has reevaluated the complaint application, which indicates that the Lezita branded chicken and eggs have been supplied to the applicant through an agreement that incorporates exclusivity conditions and the Law No. 4054 on the Protection of Competition ("Law No. 4054") has been violated by way of the termination of the agreements based on the grounds that the applicant is also conducting the sales of other brands.

The relevant conducts had been reviewed in scope of the previous preliminary investigation conducted for the purposes of the complaint in question, and through its decision dated 14.07.2011 and numbered 11-43/940-304, the Board decided to reject the complaint and did not launch a full-fledged investigation. However, the relevant Board decision has been annulled by the 13th Council of State's decision dated 27.12.2017 and numbered E:2011/3511 27.12.2017 and numbered E:2011/3511 K:2017/4404.

Consequently through its decision dated 18.04.2018 and numbered 18-11/205-M, by taking the 13th Council of State's decision into consideration, the Board decided to launch a full-fledged investigation against Abalıoğlu Yem Soya ve Tekstil A.Ş. pursuant to the Article 41 of Law No. 4054, in order to determine whether the relevant undertaking has violated Law No. 4054.

The Board launched a full-fledged investigation against Medsantek Laboratuar Malzemeleri San. and Tic. Ltd. Şti. ve Genomed Sağlık Hizmetleri A.Ş. (24.04.2018, 18-12/214-M)

The Turkish Competition Board ("Board") has concluded the preliminary investigation conducted based on the allegations that Medsantek Laboratuar Malzemeleri San. ve Tic. Ltd. Şti. and Genomed Sağlık Hizmetleri A.Ş., which are the authorized distributors of the DNA sequence analysis devices of the ThermoScientific firm in Turkey, have used their dominant position in the market for the sales, services and maintenance of the relevant devices in order to engage in abusive conduct in the market for the kit used in devices and consequently violated Law No. 4054 on the Protection of Competition ("Law No. 4054").

The Board found that the relevant allegations and findings are serious and adequate, and decided to launch a full-fledged investigation through its meeting dated 24.04.2018 and decision numbered 18-12/214-M, in order to determine whether Medsantek Laboratuar Malzemeleri San. ve Tic. Ltd. Şti. and Genomed Sağlık Hizmetleri A.Ş. have violated Article 4 of the Law No. 4054.

The Board has pronounced its final decision on the phase-II review regarding the transaction concerning the acquisition of sole control over Monsanto Company by Bayer Aktiengesellschaft (08.05.2018, 18-14/261-126)

The Turkish Competition Board ("Board") has pronounced its final decision on the phase-II review which has launched by way of the Board's decision dated 15.05.2017 and numbered 17-16/226-M regarding the transaction concerning the acquisition of sole control over Monsanto Company by Bayer Aktiengesellschaft.

As a result of the phase-II review, through its meeting dated 08.05.2018 and numbered 18-14/261-126, the Board unanimously decided that

  1. The transaction is subject to the approval of the Board pursuant to Communique No. 2010/4 on Mergers and Acquisitions Requiring the Approval of the Competition Board ("Communique No. 2010/4").
  2. Due to the fact that the commitments submitted to the EU Commission by Bayer Aktiengesellschaft also eliminate the horizontal and vertical overlaps in the markets in Turkey where competitive concerns arise, the notified transaction does not create or strengthen a dominant position in the relevant markets.

In this regard, the Board decided to grant approval to the notified transaction by majority vote, within the framework of the commitments submitted to the EU Commission, being subject to judicial review before Ankara Administrative Courts within 60 days from the date on which the reasoned decision is legally served.

The Board has pronounced its final decision on the phase-II review regarding the transaction concerning the acquisition of Mardaş Marmara Deniz İşletmeciliği A.Ş. by Limar Liman ve Gemi İşletmeleri A.Ş., controlled by Arkas Holding (08.05.2018, 18-14/267-129)

The Turkish Competition Board ("Board") has pronounced its final decision on the phase-II review which has launched by way of the Board's decision dated 01.06.2017 and numbered 17-18/271-M regarding the transaction concerning the acquisition of Mardaş Marmara Deniz İşletmeciliği A.Ş., that is conducting activities in Ambarlı Port, by Limar Liman ve Gemi İşletmeleri A.Ş., controlled by Arkas Holding.

As a result of the phase-II review, through its meeting dated 08.05.2018 and numbered 18-14/267-129, the Board unanimously decided that;

  1. The transaction is subject to the approval of the Board pursuant to Communique No. 2010/4 on Mergers and Acquisitions Requiring the Approval of the Competition Board ("Communique No. 2010/4").
  2. The relevant transaction will give rise to creating or strengthening a dominant position within the meaning of Article 7 of the Law No. 4054 on the Protection of Competition ("Law No. 4054") and consequently significantly restrict competition in the relevant market.

In this regard, the Board decided to grant approval to the notified transaction by majority vote, within the framework of the commitments submitted to the Turkish Competition Authority dated 14.07.2017 and numbered 5086 and dated 18.12.2017 and numbered 9220, being subject to judicial review before Ankara Administrative Courts within 60 days from the date on which the reasoned decision is legally served.

The Board has pronounced that an additional 23 undertakings have been involved in the full-fledged investigation conducted against 9 undertakings active in the mail-cargo delivery services (29.03.2018, 18-09/162-M and 18-09/161-M)

Through its meeting dated 15.02.2018 and decision numbered 18-05/77-M, the Turkish Competition Board ("Board") had decided to launch a full-fledged investigation in order to determine whether the undertakings listed below, that procure international transportation services from UPS and engage in mail/package/cargo delivery services, have violated Article 4 of Law No. 4054 on Protection of Competition ("Law No. 4054") by way of customer allocation.

  • Air Ekspres Dağıtım Taşımacılık Lojistik Hizmetleri ve Tic. Ltd. Şti.
  • Aras Kargo Yurtiçi Yurtdışı Taşımacılık A.Ş.,
  • Asilkar Lojistik Dağ. Hiz. İç ve Dış Tic. Ltd. Şti.,
  • MNG Kargo Yurtiçi ve Yurtdışı Taşımacılık A.Ş.,
  • Paket Taşımacılık Sistemleri ve Turizm Bilgisayar Ticaret A.Ş.,
  • Solmaz Nakliyat ve Ticaret A.Ş.,
  • STF Kargo Nakliyat Ticaret Ltd. Şti.,
  • TNT International Express Taşımacılık Ticaret Ltd. Şti.,
  • Ünsped Paket Servisi San. ve Tic. A.Ş.

Through its meeting dated 29.03.2018 and decision dated 18-09/162-M, the Board has decided to amend the subject of the investigation dated 15.02.2018 and numbered 18-05/77-M as follows: "the determination of whether the Article 4 of the Law No. 4054 has been violated by way of engaging in customer allocation amongst undertakings active in mail/cargo delivery services". Through the same meeting the Board also decided to initiate a full-fledged investigation against the undertakings listed below and the combination of the relevant investigation with the investigation initiated by way of the Board's decision numbered 18-05/77-M.

  • Antrepo Lojistik Taşımacılık Kargo ve Kurye Hizmetleri Ticaret ve Sanayi Ltd. Şti.,
  • Aslansoy Yuba Lojistik İç ve Dış Tic. Ltd. Şti.,
  • Asset Lojistik A.Ş.,
  • Cemal Bozaslan,
  • CLG Express Uluslararası Taşımacılık A.Ş.,
  • Demirtaş Nakliye Tur. İnş. Gıda Canlı Hayvan Tic. Ltd. Şti.,
  • DFN Lojistik Hiz. San. ve Tic. A.Ş.,
  • DRN Lojistik A.Ş.,
  • Eli Uluslararası Taşımacılık ve Tur. Ltd. Şti.,
  • Gama Kombine Taşımacılık A.Ş.,
  • Gonca Palanduz UDT Loj. Taş. İth. İhr. Taşımacılık,
  • Hipex Dış Ticaret Halil İbrahim Palalı,
  • İnter Global Kargo Ticaret Ltd. Şti.,
  • Kevser Funda Sanlıman UKGS Uluslararası Kargo Gönderim Servisleri,
  • Serkan Çınar Çınartaş Grup,
  • Tuncay Işıklı GSP Uluslararası Taşımacılık ve Dış. Tic.
  • Turimex Global Lojistik Gümrükleme İç ve Dış Tic. Ltd. Şti.,
  • Yurtiçi Kargo Servisi A.Ş.

In addition, through the same meeting, as the result of the preliminary investigation conducted based on the Board decision numbered 18-05/77-M(1), the Board has decided to initiate a full-fledged investigation against the undertakings listed below and the combination of the relevant investigation with the investigation initiated by way of the Board's decision numbered 18-05/77-M.

  • DHL Worldwide Express Taşımacılık ve Ticaret A.Ş.,
  • Sürat Kargo Lojistik ve Dağıtım Hizmetleri A.Ş.,
  • Kargo Dünya Uluslararası Taşımacılık ve Dış Ticaret Ltd. Şti.,
  • ASE Asya Afrika Hızlı Kargo ve Dağıtım A.Ş.,
  • On Ekspres Hava Kurye ve Kargo Uluslararası Taşımacılık Hizmetleri Ltd. Şti.

The Board launched a full-fledged investigation against Göltaş Çimento A.Ş. and As Çimento San. ve Tic. A.Ş. (03.05.2018, 18-13/243-M).

The Turkish Competition Board ("Board") has concluded the preliminary investigation conducted based on the allegations that Göltaş Çimento A.Ş. and As Çimento San. ve Tic. A.Ş. violated the Law No. 4054 on the Protection of Competition ("Law No. 4054") by way of determining the cement prices jointly and sharing customers by putting pressure on ready-mixed concrete producers.

Through its meeting dated 03.05.2018 and decision numbered 18-13/243-M, the Board found that the relevant allegations and findings are serious and adequate, and decided to launch a full-fledged investigation against Göltaş Çimento A.Ş. and As Çimento San. ve Tic. A.Ş. in order to determine whether the relevant undertakings have violated the Law No. 4054.

The Board published the reasoned decision on the preliminary investigation conducted against JOTUN Boya Sanayi ve Ticaret A.Ş. (15.02.2018, 18-05/74-40).

On May 5, 2018 the Turkish Competition Board ("Board") published its reasoned decision dated February 15, 2018 and numbered 18-05/74-40 following its preliminary investigation based on the allegations within the application filed by complainant that JOTUN Boya Sanayi ve Ticaret A.Ş. ("JOTUN") has violated Article 4 of the Law No 4054 on the Protection of Competition ("Law No 4054"). The allegations are concerned with the claims that JOTUN has determined the resale prices and sales conditions of the authorized dealers and restricted their online sales through a prohibitive provision within its dealership agreements.

The Board, when examining the claims against JOTUN focused on six principle issues: it was alleged that JOTUN (i) determines the resale prices of the dealers; (ii) does not provide its products directly to the market; (iii) restricts the sales conducted by dealers to the end users; (iv) distributes the work between the dealers; (v) discriminates between its dealers; (vi) restricts passive sales. In addition, the Board noted that there are indications that JOTUN interferes with the sales conditions of its dealers for projects and restricts sales conducted via the internet. The Board stated that the foregoing two conducts should be assessed under Article 4 of Law No. 4054.

Information on the Sector and the Relevant Market

The Board initially provided an overview of the sector and indicated paint is one of the coatings that protects and colors indoor and outdoor surfaces. In this context, the Board noted that paint is in competition with various coatings from a supply perspective. The Board further noted that in accordance with the Board's and European Commission's precedents on the matter, the coating and paint production and sales market could be classified as: (i) industrial coating; (ii) decorative coating; (iii) marine and protective coating; (iv) bobbin coating; and (v) automobile coating. The Board ultimately left the relevant product market definition open, since such definition will not produce any effects on the conclusion of its assessment and defined the relevant geographical product market as "Turkey".

Assessment of the Board for Determination of Dealers' Resale Conditions

The Board initially stated that although it was seen that JOTUN notifies dealers of purchase and sale prices for large-scale projects, there were no indications that show the relevant communication also took place for retails sales. Moreover, the Board also indicated that RPM could occur when the manufacturer directly or indirectly obliges the reseller to a fixed, minimum or maximum price; therefore restricting the reseller from independently determining its own resale prices would in turn fall under the scope of the Article 4(a) of the Block Exemption Communiqué on Vertical Agreements No. 2002/2 ("Communiqué No. 2002/2").

The Board noted that, for the case at hand, JOTUN's conduct is more towards setting a maximum price that includes a special discount for large-scale projects rather than resale price management. Therefore, the Board articulated that JOTUN's conduct does not bear anti-competitive purpose or produce such effects; but an element of the competition specific to the projects. The Board further assessed the conduct by comparing sales prices, meaning JOTUN's recommended prices, in between two different dealers for a single product. The Board saw that the sales prices of two dealers differentiate amongst each other, and also differentiate from the listed prices. In this regard, the Board indicated that such findings point towards the conclusion that JOTUN did not determine the resale prices for retail products.

Alleged Restrictions for Internet Sales

After requesting the dealership agreement of JOTUN, the Board received two agreements: (i) the old dealership agreement of JOTUN and (ii) the renewed dealership agreement of JOTUN. The Board found that the renewed agreement includes a provision which restricts the online sales of JOTUN's products.

Herein, the Board noted that sales conducted via the internet has been a growing trend in Turkey and the world, since such sales lower the search costs for customers and distribution costs for undertakings, as well as providing a wider geographic scope and access to more consumers. The Board further stated that the European Commission has issued a sector report on e-commerce and highlighted the importance of vertical restraints within the e-commerce sector. In this context, it is articulated that restraints concerning prices, prohibitions from online platform sales and restrictions towards price comparison tools and exclusion of undertakings that conduct online sales from the distribution networks are becoming more and more widespread. It is further stated that the European Commission's perspective to distribution agreements focuses on the fact that the dealers' freedom to conduct sales via the internet should not be restricted.

Furthermore, the Board referred to the European Commission's Vertical Agreements Block Exemption Regulation ("EU Regulation"), the European Commission's Guidelines on Vertical Restraints ("EU Guidelines"), as well as several precedents of EU courts. In this regard, the Board highlighted that according to the EU Vertical Guidelines, distribution agreements that do not entail a hard-core restrictions and do not exceed the relevant market share threshold would be excluded from the application of Article 101 of the Treaty on the Functioning of the European Union ("TFEU"). Nonetheless, restriction of active/passive sales by a supplier that utilizes a selective distribution system would be regarded as a hard-core restriction in accordance with the EU Regulation. In accordance with the EU Guidelines, the directly restriction of passive sales and any conduct that would produce the same results as such restrictions would restrict competition. According to the EU Guidelines, besides the direct restrictions imposed on passive sales, the following behaviour is prohibited within the scope of indirect restriction of passive sales:

  • Restriction of access of a customer to a website, who is determined to be located within another exclusive distributor's territory or redirection of this customer to the supplier's or distributors' website;
  • Cancelling a customer's order if it is noticed from the customer's credit card information that the customer is not located in the exclusive territory;
  • Restriction of the percentage of total sales conducted via the internet; and
  • Determination of the resale price of the distributor for products that will be sold through the internet by comparing the sales prices of traditional sales channels.

French Competition Authority's Pierre Fabre decision

In accordance with the EU Guidelines, for the said-restrictions to benefit from the protective cloak of individual exemption, there must an objective cause for the product to be sold physically. Therein, the Board referred to the French Competition Authority's Pierre Fabre decision[1] where it was concluded that the self-care and cosmetics firm's restriction of internet sales bore anti-competitive purposes and were not granted an individual exemption. The European Court of Justice, in its appellate review, noted that the restriction on internet sales did not include a product-specific objective cause and therefore could have competition restrictive purposes. The Board noted that the defences concerning the products subject to the agreement in the said-case, namely the utilization of the relevant products required expert recommendation and internet sales damaged the brand image, were not accepted by European Court of Justice.

The Board highlighted that the European Commission's approach towards restrictions on internet sales focuses on an objective just cause which is based on the product's specifics and that the prohibition of restricting internet sales is fundamentally limited to prescription medicine and products that are prohibited from being sold online in consideration of public bans. Therefore, if an internet sales restriction is imposed on a product and the restriction cannot be objectively justified, this would be regarded as competition restrictive behaviour by purpose.

The European Court of Justice's Coty decision

The Board finally referenced the Coty decision of the European Court of Justice where the internet sales restriction for online platforms was examined. The Court decided that considering the specifics of the products, there was no passive sales restriction. In other words, it was decided that in order to protect the brand image of luxury products, restrictions related the sales conducted via third-party online platforms could be imposed on the distributors.

In context of the Turkish competition law legislation, the Board noted that internet sales are primarily categorized as passive sales as per paragraph 24 of the Guidelines on Vertical Agreements and therefore restriction of such sales would be deemed as the restriction of passive sales. In this context, the Board also saw that although for the context of selective distribution systems, the supplier can prohibit sales to unauthorized distributors; it cannot restrict active or passive sales to end users on the retail level. As a result, the Board indicated that although JOTUN established a selective distribution system, a provision restricting online sales of authorized distributors would cause the vertical agreement to fall out of scope of the Communiqué No. 2002/2. In this respect, the Board evaluated that prohibiting online sales as a whole would be disproportionate with the purpose of restricting the sales to unauthorized distributors and would not benefit from an individual exemption. The Board noted that JOTUN could have adopted less restrictive arrangements in order to prevent the distributors from conducting sales to unauthorized distributors (for instance; imposing restrictions on the customers' purchase amount via internet sales, which can also be imposed towards physical sales points under certain conditions).

Ultimately, as JOTUN's market power for decorative paint is limited and thus the effects of the foregoing restriction would also be limited, the Board did not initiate an in-depth investigation. However, the Board recommended JOTUN to alter and renew its dealer agreement to exclude the prohibition of passive sales via internet pursuant to Article 9 of Law No. 4054.

The Board published its reasoned decision on the preliminary investigation conducted against Lider Evcil Hayvan Beslenme Ürünleri San. ve Tic. Ltd. Şti., Tavas Pet Dış Ticaret Ltd. Şti., Akın Satış Dağıtım Pazarlama and Maskot Pet- Arzu Atabay. (08.03.2018, 18-07/113-60).

The Turkish Competition Board ("Board") published the reasoned decision on the preliminary investigation conducted against Lider Evcil Hayvan Beslenme Ürünleri San. ve Tic. Ltd. Şti. ("Lider"), Tavas Pet Dış Ticaret Ltd. Şti. ("Tavas"), Akın Satış Dağıtım Pazarlama ("Akın") and Maskot Pet- Arzu Atabay ("Maskot") based on the allegations that Tavas, Aegean Region distributor of Lider, obstructed the activities of Marmaris Pet Shop ("Marmaris" or "complainant") by way of refusing to supply goods in line with the requests of the complainant's competitor (i.e. Maskot) and consequently that Lider restricted the passive sales of its distributors.

Lider is a company active in the production, commerce, import and export of the all kinds of pet biscuits, forage, pet foods, and similar products. Lider distributes its products through Tavas and Sera Plastik San. Mamülleri Tic. ve Paz. Ltd. Şti. The products are distributed by Tavas to Marmaris, the region where the complaints concerned with. In addition, the Board states that Akın is not a distributor but instead an authorized dealer of Lider to sale the products in Adana, Mersin, Gaziantep, Kahramanmaraş and Hatay. Futhermore, Maskot is active in the sales of the pet forage and accessories in Muğla province with its seven branches.

In its assessment, the Board stated that there are three issues that need to be evaluated in scope of the Law No. 4054 on the Protection of Competition ("Law No. 4054"). In this regard, the Board evaluated (i) whether Lider or its distributor Tavas has violated the Article 6 of Law No. 4054 by way of refusing to supply goods to the complainant (ii) whether Marmaris's inability to procure Lider goods depends on the agreement between Tavas and Maskot that violates the Article 4 of Law No. 4054 and lastly (iii) whether Lider has restricted the passive sales of its dealers.

Regarding the first issue, the Board stated the abuse of dominant position is considered as a violation pursuant to the Article 6 of Law No 4054 which states that "the abuse, by one or more in a market for goods or services within the whole or a part of the country on their own or through agreements with others or through concerted practices, is illegal and prohibited." With respect to the definition under Article 6 of Law No. 4054, the Board evaluated that that in order for a conduct to be considered as an abuse of dominant position, two cumulative conditions must be satisfied: (i) the undertaking that has engaged in the conduct must be in a dominant position in the relevant market, and (ii) the conduct itself must be abusive in nature. In this regard, the Board considered that firstly it must be determined whether Lider is in a dominant position and in order to determine whether Lider is in a dominant position, firstly the relevant product market should be defined. The Board defined the relevant product market as "dog and cat foods market" by considering that Lider is active in the production of cat and dog foods and the complainant, Marmaris, is a seller of cat and dog foods. In fact, the Board stated that most of the companies produce both dog and cat foods and these two products are offered for sale in the same sales points. Even though, these two products are not substitutable in terms of demand, the Board stated that the demand substitution is not taken into consideration for defining the relevant product market as this issue is not important for the case at hand. In addition, the Board defined the relevant geographical product market as "Turkey". After defining the relevant product market, the Board stated that Lider is not in a dominant position in the relevant product market since (i) its market share does not exceed certain percentage, (ii) there are many local and foreign competitors and (iii) there is a rapid growth rate in the market. In this context, the Board stated that it is not possible for Lider to violate the Article 6 of Law No. 4054 directly or through its distributor, Tavas.

Regarding the assessment under Article 4 of Law No. 4054, the Board stated that pursuant to the Article 4 (d), "complicating and restricting the activities of competing undertakings, or excluding undertakings operating in the market by boycotts or other behavior, or foreclosing the market to potential new entrants" is illegal and prohibited. In this regard, the Board stated that it is seen in the documents obtained during the on-site inspection that Maskot requested Lider not to supply products to its competitors. However, the Board also explained that there is no evidence that support Tavas confirmed Maskot's request. On the contrary, there is evidence that Tavas rejected this request, therefore it cannot be stated that not supplying goods to Marmaris after March, 2017 rely on the agreement between Tavas and Maskot. In addition, Tavas explained the reason for not supplying goods to Marmaris with economic reasons such as maturity and Marmaris's terms of payment. In this regard, the Board evaluated that even though it is clear that Maskot requested Tavas not to supply goods to its competitors and it does not want any competition in its region, it is not possible for Maskot to achieve its purpose by itself since it does not produce any dog or cat foods but only sells the products it purchases from the producers. Therefore, it would be only possible to obstruct the activities of its competitors in case the suppliers agree with Maskot.

Regarding the allegation that Lider has restricted the passive sales of its distributors, Marmaris stated that it has requested Akın to supply goods but Akın did not supply goods to Marmaris since Marmaris is not in its territory. In this regard, the Board stated that pursuant to Article 4 of Law No. 4054, "Agreements and concerted practices between undertakings, and decisions and practices of associations of undertakings which have as their object or effect or likely effect the prevention, distortion or restriction of competition directly or indirectly in a particular market for goods or services are illegal and prohibited." In its assessment, the Board firstly stated that Communique No. 2002/2 on Block Exemption for Vertical Agreements ("Communique No. 2002/2") provides block exemption to the vertical agreements in case some conditions are fulfilled. The Board indicated that according to the Communiqué No. 2002/2, as a first condition the market share of the supplier should not exceed 40% threshold. Therefore, the Board evaluated that the market shares of Lider and Tavas do not exceed 40% threshold. In this regard, the Board considered that the exclusive distributorship agreement signed between Lider and Akın may benefit from the Communique No. 2002/2 provided that other conditions foreseen for the vertical agreements to benefit from the block exemption are also fulfilled.

With respect to the passive sales, the Board stated that the restriction of passive sales cannot benefit from the block exemption provided via the Communiqué No. 2002/2. In its assessment the Board stated that "fulfilling demands of customers from the region or customer group of another buyer and which are not a result of active efforts by the buyer constitutes "passive sales," even when the buyer delivers the goods to the customer's address". In this regard, the Board stated that there are no regulations in the distributorship agreement restricting the distributors from conducting passive sales outside of the allocated territories.

Ultimately, in light of the above the Board decided not to initiate a full-fledged investigation.


[1] C-439/09 Pierre Fabre Dermo-Cosmetique SAS.

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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Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions