Turkey: Recent Cases

Last Updated: 22 March 2018

The Board approved the transaction regarding the acquisition of sole control over LR Global Holding GmbH which was under the joint control of Quadriga Capital Private Equity Fund IV, L.P.  and The Bregal Fund III L.P  by Quadriga Capital Private Equity Fund IV, L.P. (27.8.2018; 18-29/481-233)

The Turkish Competition Board (“Board”) approved the transaction regarding the acquisition of sole control over LR Global Holding GmbH which was under the joint control of Quadriga Capital Private Equity Fund IV, L.P.  and The Bregal Fund III L.P  by Quadriga Capital Private Equity Fund IV, L.P.

The Board approved the transaction regarding the acquisition of sole control over KLX Inc. by The Boeing Company (27.8.2018; 18-29/493-244).

The Turkish Competition Board (“Board”) approved the transaction regarding the acquisition of sole control over KLX Inc. by The Boeing Company.

The Board approved the transaction regarding the acquisition of sole control over Gemalto N.V. by Thales S.A. (27.8.2018; 18-29/486-237).

The Turkish Competition Board (“Board”) approved the transaction regarding the acquisition of sole control over Gemalto N.V. by Thales S.A.

The Board approved the transaction regarding the acquisition of sole control by Sonatrach over the Augusta refinery and other ancillary assets owned by Esso Italiana S.r.I (06.09.2018; 18 -30/507-246).

The Competition Board (“Board”) approved the transaction regarding the acquisition of sole control by Sonatrach over the Augusta refinery and other ancillary assets owned by Esso Italiana S.r.I, which is an affiliate of Exxon Mobil Corporation.

The Board approved the transaction regarding the acquisition of sole control over GE Distributed Power Inc., General Electric Austria GmbH and Jenbacher International B.V.

by Advent International Corporation (06.09.2018; 18 -30/509-248).

The Turkish Competition Board (“Board”) approved the transaction regarding the acquisition of sole control over GE Distributed Power Inc., General Electric Austria GmbH and Jenbacher International B.V. together with their respective subsidiaries by Advent International Corporation.

The Board approved the transaction regarding the merger of Suzano Papel e Celulose S.A. with Fibria Celulose S.A. (06.09.2018; 18 -30/514-253).

The Turkish Competition Board (“Board”) approved the transaction regarding the merger of Suzano Papel e Celulose S.A. with Fibria Celulose S.A.

The Board approved the transaction regarding the acquisition of sole control Gist-Broacades International B.V. and DSM Sinochem Pharmaceuticals Pte Ltd. by the funds managed by Bain Capital Investors, LLC. (06.09.2018; 18 -30/515-254)

The Turkish Competition Board (“Board”) approved the transaction regarding the acquisition of sole control Gist-Broacades International B.V. and DSM Sinochem Pharmaceuticals Pte Ltd. by the funds managed by Bain Capital Investors, LLC.

The Board approved the transaction regarding the acquisition of sole control over Shire Plc. by Takeda Pharmaceutical Company Limited (06.09.2018; 18 -30/517-256).

The Turkish Competition Board (“Board”) approved the transaction regarding the acquisition of sole control over Shire Plc. by Takeda Pharmaceutical Company Limited.

The Board approved the transaction regarding the acquisition of sole control over Container Finance Ltd Oy by CMA CGM S.A. (12.09.2018; 18-31/530-261).

The Turkish Competition Board (“Board”) approved the transaction regarding the acquisition of sole control over Container Finance Ltd Oy by CMA CGM S.A.

The Board approved the transaction regarding the acquisition of joint control over Terratec Ltd. by JIM Technology Corporation and Terratec Group Inc.. (12.09.2018; 18-31/529-260).

The Turkish Competition Board (“Board”) approved the transaction regarding the acquisition of joint control over Terratec Ltd. (which was solely controlled by Terratec Group Inc.) by JIM Technology Corporation and Terratec Group Inc..

The Board approved the transaction regarding the acquisition by Compagnie Générale des Etablissements Michelin – the holding company of Michelin group - of all of the issued and outstanding equity of Camso Inc. and its subsidiaries (17.10.2018; 18-39/625-304).

The Turkish Competition Board (“Board”) approved the transaction regarding the acquisition by Compagnie Générale des Etablissements Michelin – the holding company of Michelin group - of all of the issued and outstanding equity of Camso Inc. and its subsidiaries.

The Board granted individual exemption to the Distributorship Agreement signed between Mey İçki Sanayi ve Ticaret A.Ş. and Gram Gıda ve Tekel Maddeleri A.Ş.( 19.9.2018; 18-33/547-270).

The Turkish Competition Board (“Board”) decided that the standard Distributorship Agreement signed between Mey İçki Sanayi ve Ticaret A.Ş. and Gram Gıda ve Tekel Maddeleri A.Ş., related to whiskey, wine, liquor, tequila, rum products, benefits from the block exemption in scope of the Block Exemption Communiqué on Vertical Agreements No. 2002/2. In addition, the Board decided to grant individual exemption to the Distributorship Agreement regarding raki, vodka, gin products, since it was evaluated that all of the conditions set out under the Article 5 of Law No 4054 on the Protection of Competition are met.

The Board approved the transaction regarding the acquisition of sole control over Danske Commodities A/S by Equinor Refining Norway AS (26.09.2018; 18-34/561-276).

The Turkish Competition Board (“Board”) approved the transaction regarding the acquisition of sole control over Danske Commodities A/S by Equinor Refining Norway AS.

The Board approved the transaction regarding the acquisition of sole control of film and television studios, cable entertainment networks, and international television businesses of Twenty-First Century Fox, Inc. by The Walt Disney Company (04.10.2018; 18-37/595-290).

The Turkish Competition Board (“Board”) approved the transaction regarding the acquisition of sole control of the film and television studios, cable entertainment networks, and international television businesses of Twenty-First Century Fox, Inc. by The Walt Disney Company.

The Board approved the transaction regarding the establishment of a joint venture, jointly controlled by EQT VI Limitedand EQT Fund Management S.à r.l and Widex Holding A/S (4.10.2018; 18-37/589-288).

The Turkish Competition Board (“Board”) approved the transaction regarding the establishment of a joint venture which, jointly controlled by EQT VI Limitedand EQT Fund Management S.à r.l and Widex Holding A/S and combining the activities of Sivantos Pte. Ltd. and Widex A/S and their respective subsidiaries under a newly incorporated entity.

The Board approved the transaction regarding the acquisition of sole control of Sanyo Special Steel Co., Ltd. by Nippon Steel & Sumitomo Metal Corporation (04.10.2018; 18-37/596-291).

The Turkish Competition Board (“Board”) approved the transaction regarding the acquisition of sole control of Sanyo Special Steel Co., Ltd. by Nippon Steel & Sumitomo Metal Corporation.

The Board approved the transaction regarding the acquisition of a certain amount of equity stake of MaxamCorp Holding S.L. by Rhone Capital L.L.C. (04.10.2018; 18-37/586-287).

The Turkish Competition Board (“Board”) approved the transaction regarding the acquisition of certain amount of equity stake of MaxamCorp Holding S.L. by Prill Holdings S.a.r.l which is a subsidiary of Rhone Capital L.L.C.

The Board approved the transaction regarding the acquisition of all the rights and interest in Shoal Creek mine by Peabody Energy Corporation (08.11.2018; 18-42/663-324).

The Turkish Competition Board (“Board”) approved the transaction regarding the acquisition of all the rights and interest in Shoal Creek mine by Peabody Energy Corporation, through its wholly owned indirect subsidiary, Peabody Southeast Mining LLC.

The Board approved the transaction regarding the acquisition of sole control over Lansing Trade Group LLC by The Andersons Inc. (08.11.2018; 18-42/665-326).

The Turkish Competition Board (“Board”) approved the transaction regarding the acquisition of sole control over Lansing Trade Group LLC by The Andersons Inc.

The Board approved the transaction regarding the acquisition of sole control over Unifeeder A/S by DP World Investments B.V. (08.11.2018; 18-42/666-327).

The Turkish Competition Board (“Board”) approved the transaction regarding the acquisition of sole control over Unifeeder A/S by DP World Investments B.V.

The Board approved the transaction regarding the acquisition of control of BDP International, Inc. by the funds owned by Greenbriar Holdings IV, L.L.C. (15.11.2018; 18-43/680-333).

The Turkish Competition Board (“Board”) approved the transaction regarding the acquisition of control of BDP International, Inc. by the funds owned by Greenbriar Holdings IV, L.L.C.

The Board has pronounced its final decision on the full-fledged investigation conducted against TTNET A.Ş. (27.08.2018; 18-29/497-238).

The Turkish Competition Board (“Board”) recently pronounced its final decision regarding the full-fledged investigation conducted against TNET A.Ş. in order to determine whether it has abused Article 6 of the Law No. 4054 on Protection of Competition (“Law No. 4054”) by way of offering packages including pay TV services with fixed broad band internet services.

As the result of the full–fledged investigation, through its meeting dated 27.08.2018 and decision numbered 18-29/497-238, the Board decided that; TTNET A.Ş. is in a dominant position in the market for fixed broad band internet services but however did not violate the Article 6 of Law No. 4054. Therefore, the Board concluded that there is no need to impose any administrative monetary fines on the relevant undertaking. Nevertheless the Board decided to send an opinion to Information Technologies and Communications Authority stating that implementing the principles related to multicast tariff access obligation imposed on Telekomünikasyon A.Ş. pursuant  to Information Technologies and Communication Board’s decision dated 11.01.2013 and 2013/DKSRD/29 will contribute to establishment of effective competition in the market.

The Board pronounced its final decision on the full-fledged investigation conducted against Mercedes-Benz Türk A.Ş. (27.08.2018; 18-29/498-239).

The Turkish Competition Board (“Board”) recently pronounced its final decision regarding the full-fledged investigation conducted against Mercedes-Benz Türk A.Ş. in order to determine whether it has abused Article 6 of the Law No. 4054 on Protection of Competition (“Law No. 4054”) through the agreements concluded with concrete pump manufacturers and the rebate systems implemented towards the relevant manufacturers.

As the result of the full–fledged investigation, through its meeting dated 27.08.2018 and decision numbered 18-29/498-239, the Board decided that; Mercedes-Benz Türk A.Ş. did not violate the Article 6 of Law No. 4054; therefore, concluded that there is no need to impose any administrative monetary fines on the relevant undertaking.

The Board pronounced its final decision on the full-fledged investigation conducted against Google LLC, Google International LLC and Google Reklamcılık ve Pazarlama Ltd. Şti. (19.09.2018; 18-33/555-273).

The Turkish Competition Board (“Board”) recently pronounced its final decision regarding the full-fledged investigation conducted against the economic entity comprised of Google LLC, Google International LLC and Google Reklamcılık ve Pazarlama Ltd. Şti. in order to determine whether the economic entity’s behaviors related to mobile operating system and mobile application and service delivery and the agreements executed with equipment manufacturers are in violation of the Law No. 4054 on Protection of Competition (“Law No. 4054”).

Through its meeting dated 19.09.2018 and decision numbered 18-33/555-273, the Board decided that;

  • The economic unity consisting of Google LLC, Google International LLC and Google Reklamcılık ve Pazarlama Ltd. Şti. holds a dominant position in the “licensable mobile operating systems” market;
  • The economic unity consisting of Google LLC, Google International LLC and Google Reklamcılık ve Pazarlama Ltd. Şti. has violated Article 6 of Law No. 4054;
  • To impose an administrative monetary fine against Google LLC, Google International LLC and Google Reklamcılık ve Pazarlama Ltd. Şti. (conjointly) in the amount of TL 93,083,422.30;
  • to send an opinion to the economic unity indicating that even though the requirements regarding other Google applications within Mobil Application Distributorship Agreement (“MADA”) do not violate Law No. 4054, Google should include an explicit provision in all MADAs, stating that the pre-installation of competing applications along with Google applications on devices will not be restricted or limited; in order to ensure that other device manufacturers who sign the agreement are properly informed and to prevent any potential competition law concerns that may occur in the future;
  • To impose certain obligations on the economic unity of Google to terminate the infringement and restore effective competition in the market;
  • Amendments to be made in the agreements pursuant to the indicated obligations should be submitted the Competition Authority within 6 months after the reasoned decision is served.

The Board launched a full-fledged investigation against UCTEA (The Chamber of Electrical Engineers) (06.09.2018; 18-30/505-M).

The Turkish Competition Board (“Board”) has concluded the preliminary investigation conducted based on the allegations that UCTEA The Chamber of Electrical Engineers Provincial Representative Office of Konya has violated the Article 4 of Law No. 4054 on Protection of Competition (“Law No. 4054”) by its commission decision.

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 06.09.2018 and decision numbered 18-30/505-M against UCTEA (The Chamber of Electrical Engineers) in order to determine whether the relevant undertaking has violated the Article 4 of Law No. 4054.

The Board launched a full-fledged investigation against Baymak Makina San. ve Tic. A.Ş.  (06.09.2018; 18-30/523-M).

The Turkish Competition Board (“Board”) has concluded the preliminary investigation conducted based on the allegations that Baymak Makina San. ve Tic. A.Ş. has violated Law No. 4054 on Protection of Competition (“Law No. 4054”) by its vertical agreements executed with the distributors and other practices.

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 06.09.2018 and decision numbered 18-30/523-M against Baymak Makina San. ve Tic. A.Ş. in order to determine whether the relevant undertaking have violated of the Article 4 of Law No. 4054.

The Board pronounced its final decision on the full-fledged investigation conducted against Türk Henkel Kimya Sanayi ve Ticaret A.Ş. (19.09.2018; 18-33/556-274).

The Turkish Competition Board (“Board”) recently pronounced its final decision regarding the full-fledged investigation conducted against Türk Henkel Kimya Sanayi ve Ticaret A.Ş. in order to determine whether the relevant undertaking has violated the Article 4 of Law No. 4054 on Protection of Competition (“Law No. 4054”) by way of resale price maintenance conducts.

Through its meeting dated 19.09.2018 and decision numbered 18-33/556-274; the Board unanimously decided that Türk Henkel Kimya Sanayi ve Ticaret A.Ş. violated the Article 4 of Law No. 4054 via maintaining the resale price of its products. Therefore, the Board unanimously decided to impose administrative monetary fines on the relevant undertaking in the amount of TL 6.944.931,02.

The Board launched a full-fledged investigation against BP Petrolleri A.Ş., OPET Petrolcülük A.Ş., Petrol Ofisi A.Ş. and Shell & Turcas Petrol A.Ş. (27.08.2018; 18-29/484-M).

The Turkish Competition Board (“Board”) has concluded the preliminary investigation conducted based on the allegations that BP Petrolleri A.Ş., OPET Petrolcülük A.Ş., Petrol Ofisi A.Ş. and Shell & Turcas Petrol A.Ş. have violated the Article 4 of  Law No. 4054 on Protection of Competition (“Law No. 4054”) by their conducts towards their distributors.

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 27.08.2018 and decision numbered 18-29/484-M against BP Petrolleri A.Ş., OPET Petrolcülük A.Ş., Petrol Ofisi A.Ş. and Shell & Turcas Petrol A.Ş. in order to determine whether the relevant undertaking have violated of the Article 4 of Law No. 4054.

The Board pronounced its final decision on the full-fledged investigation conducted against Roche Müstahzarları San. A.Ş. (26.09.2018; 18-34/577-283).

The Turkish Competition Board (“Board”) recently pronounced its final decision regarding the full-fledged investigation conducted against Roche Müstahzarları San. A.Ş. in order to determine whether the relevant undertaking has violated the Law No. 4054 on Protection of Competition (“Law No. 4054”) by way of stipulating pharmaceutical warehouses to sign the agreement that includes export prohibition clause, refusal of supply conducts towards the complainant who did not accept the relevant condition and putting pressure on other pharmaceutical warehouses for not selling Roche products to the complainant.

The full-fledged investigation was initiated based on the annulment of the Board’s decision on the case file, dated 17.06.2010 and numbered 10-44/785-262, upon the 13th Council of State’s decision dated 16.12.2016 and numbered 2010/4617 E., 2016/4241 K.

As the result of the full–fledged investigation, through its meeting dated 26.09.2018 and decision numbered 18-34/577-283, the Board decided that; Roche Müstahzarları San. 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.

The Board pronounced its final decision on the full-fledged investigation conducted against Sahibinden Bilgi Teknolojileri Paz. ve Tic. A.Ş. (01.10.2018; 18-36/584-285).

The Turkish Competition Board (“Board”) recently pronounced its final decision regarding the full-fledged investigation conducted against Sahibinden Bilgi Teknolojileri Paz. ve Tic. A.Ş. in order to determine whether the relevant undertaking has violated the Article 6 of Law No. 4054 on Protection of Competition (“Law No. 4054”) by excessive pricing conducts in the markets for online platform services towards vehicle and estate sale / rental services.

Through its meeting dated 19.09.2018 and decision numbered 18-33/556-274; the Board unanimously decided that Sahibinden Bilgi Teknolojileri Paz. ve Tic. A.Ş. is in dominant position in the online platform services towards vehicle sale services market and online platform services towards estate sale / rental services. In addition, the Board decided that Sahibinden Bilgi Teknolojileri Paz. ve Tic. A.Ş. abused its dominant position and violated the Article 6 of Law No. 4054 by way of excessive pricing conduct in the relevant markets. As a result, the Board decided to impose administrative monetary fines on the relevant undertaking in the amount of TL 10.680.425,98.

The Board has pronounced its final decision on the phase-II review regarding the transaction concerning the merger of Luxottica Group S.p.A. and Essilor International S.A. (01.10.2018, 18-36/585-286).

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 10.10.2017 and numbered 17-31/523-M regarding the transaction concerning the merger of Luxottica Group S.p.A. and Essilor International S.A.

As the result of the Phase II Review, the Board has unanimously decided through its meeting dated 01.10. 2018 and decision numbered 18-36/585-286 that;

  1. The notified transaction is subject to the approval of the Competition Board pursuant to Article 7 of Law No. 4054 on the Protection of Competition and Communiqué No. 2010/4 on the Mergers and Acquisitions Subject to the Approval of the Competition Board,
  1. Pursuant to the Article 7 of the Law No. 4054, as the notified transaction would result in the creation or strengthening of a dominant position within the meaning of the same article, and significantly impede competition in the market, the notified transaction cannot be approved in scope of Article 7 of Law No. 4054,
  1. Notwithstanding the foregoing, the notified transaction would be conditionally approved, in scope of the commitment package submitted to the records of the Competition Authority dated 14.09.2018 and numbered 6707 which included structural commitments concerning the divestiture of Merve Optik Sanayi ve Ticaret A.Ş. (which includes the merged entity not to acquire the rights of distribution of the brands subject to the license agreement between Merve Optik Sanayi ve Ticaret A.Ş. and Marcolin S.p.A.) and the behavioral commitments, only if following excerpt from the page 9, first paragraph of the Commitment Text is removed: “notwithstanding the behavioral commitment set out above regarding tying, the Parties would remain free to implement tied sales of different products when requested by opticians. Similarly
  1. The behavioral commitments will be re-evaluated by the Competition Board at the end of the three-year period.
  1. The divestiture of Merve Optik Sanayi ve Ticaret A.Ş. is a condition and other behavioural factors within the commitment are obligations in terms of the approval decision, the approval will be deemed invalid and Article 16 of the Law No. 4054 will be applicable in case the obligation is not duly fulfilled or not fulfilled at all during the foreseen period and the administrative monetary fine foreseen under Article 17 of the Law No. 4054 will be applicable in terms of the parties in case the obligations are violated.

The Board pronounced its final decision on the full-fledged investigation conducted against Bereket Enerji Grubu A.Ş., Gediz Enerji Yatırımları A.Ş., Aydem Elektrik Perakende Satış A.Ş., ADM Elektrik Dağıtım A.Ş., Gediz Elektrik Perakende Satış A.Ş. and GDZ Elektrik Dağıtım A.Ş. (01.10.2018; 18-36/584-285).

The Turkish Competition Board (“Board”) recently pronounced its final decision regarding the full-fledged investigation conducted against Bereket Enerji Grubu A.Ş., Gediz Enerji Yatırımları A.Ş., Aydem Elektrik Perakende Satış A.Ş., ADM Elektrik Dağıtım A.Ş., Gediz Elektrik Perakende Satış A.Ş. and GDZ Elektrik Dağıtım A.Ş. in order to determine whether the relevant undertakings have violated the Article 6 of Law No. 4054 on Protection of Competition (“Law No. 4054”) by obstructing the activities of independent suppliers, preventing the customers’ right to choose their own suppliers with their various conducts.

The Board decided through its meeting dated 01.10.2018 and decision numbered 18-36/583-284 that;

  1. GDZ Elektrik Dağıtım A.Ş. and ADM Elektrik Dağıtım A.Ş. are in dominant position in electricity distribution services relevant market respectively in Gediz electricity distribution region and Aydem electricity distribution region,
  1. Gediz Elektrik Perakende Satış A.Ş. and Aydem Elektrik Perakende Satış A.Ş. are in dominant position in “retail sale of electric energy made to the customers who are below the free customer limit”, “retail sale of electricity to industrial customers who are connected to the system from distribution level”, “retail sale of electricity made to business customers” and “retail sale of electricity made to residential customers” markets.
  1. Gediz Elektrik Perakende Satış A.Ş. and Aydem Elektrik Perakende Satış A.Ş. have violated the Article 6 of Law No. 4054 by abusing their dominant positions through their conducts and applications,
  1. to impose administrative monetary fine over the annual turnover determined by the Board for the financial year of 2017 to Aydem Elektrik Perakende Satış A.Ş. in the amount of TL 19.433.652,71 and Gediz Elektrik Perakende Satış A.Ş. in the amount of TL 25.696.400,76, pursuant to Article 16(3) of the Law No. 4054 and Articles 5(1)(b), 5(2) and 5(3)(a) of “Regulation on Monetary Fines for Restrictive Agreements, Concerted Practices, Decisions and Abuses of Dominance”,
  1. Gediz Elektrik Perakende Satış A.Ş. and Aydem 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. GDZ Elektrik Dağıtım A.Ş., ADM Elektrik Dağıtım A.Ş., Bereket Enerji Grubu A.Ş. and GDZ Enerji Yatırımları A.Ş. did not violate the Article 6 of Law No. 4054, therefore there is no need to impose any administrative monetary fines on the relevant undertakings.

The Board launched a full-fledged investigation against Türk Telekomünikasyon A.Ş. (19.09.2018; 18-33/545-M).

The Turkish Competition Board (“Board”) has concluded the preliminary investigation conducted based on the allegations that Türk Telekomünikasyon A.Ş. has violated the Article 6 of  Law No. 4054 on Protection of Competition (“Law No. 4054”) by its conducts related to connection time and connection prices in the supply of wholesale leased line services.

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 19.09.2018 and decision numbered 18-33/545-M against Türk Telekomünikasyon A.Ş. in order to determine whether the relevant undertaking has violated of the Article 6 of Law No. 4054

The Board pronounced its final decision on the full-fledged investigation conducted against Radontek Medikal İthalat İhracat San. ve Tic. Ltd. Şti. (11.10.2018; 18-38/617-298).

The Turkish Competition Board (“Board”) recently pronounced its final decision regarding the full-fledged investigation conducted against Radontek Medikal İthalat İhracat San. ve Tic. Ltd. Şti. in order to determine whether the relevant undertaking has violated the Article 6 of Law No. 4054 on Protection of Competition (“Law No. 4054”) by abusing its dominant position in Accuray branded CyberKnife titled radiotherapy devices and spare parts and maintenance repair markets.

As the result of the full–fledged investigation, through its meeting dated 11.10.2018 and decision numbered 18-38/617-298, the Board decided that;

  • Radontek Medikal İthalat İhracat Sanayi ve Ticaret Ltd. Şti is in dominant position in “Cyberknife brand linear accelerator device”, “spare parts for Cyberknife brand linear accelerator device” and “maintenance repair for Cyberknife brand linear accelerator device” markets.

  • Radontek Medikal İthalat İhracat Sanayi ve Ticaret Ltd. Şti. has violated the Article 6 of Law No. 4054 by indirectly refusing to supply, therefore;
  • to impose administrative monetary fine over the annual turnover determined by the Board for the financial year of 2017 to the relevant undertaking in the amount of TL 248.548,62, pursuant to Article 16(3) of the Law No. 4054 and Articles 5(1)(b) and 5(2) of “Regulation on Monetary Fines for Restrictive Agreements, Concerted Practices, Decisions and Abuses of Dominance”.

The Board pronounced its final decision on the full-fledged investigation conducted against

Çelebi Bandırma Uluslararası Limanı İşletmeciliği A.Ş. (11.10.2018; 18-38/618-299).

The Turkish Competition Board (“Board”) recently pronounced its final decision regarding the full-fledged investigation conducted against Çelebi Bandırma Uluslararası Limanı İşletmeciliği A.Ş.  in order to determine whether the relevant undertaking has violated the Article 6 of Law No. 4054 on Protection of Competition (“Law No. 4054”) by imposing excessive pricing on the undertakings active in the Ro-Ro transportation for its port services.

In light of all the evidences, information and documents collected, investigation report, written defenses, explanations at the oral hearing meeting, the Board unanimously decided through its meeting dated 11.10.2018 and decision numbered 18-42/670-329 that;

  1. Çelebi Bandırma Uluslararası Limanı İşletmeciliği A.Ş. is in dominant position in the market for “port services towards ro-ro vessels” comprising “Aegean, South Marmara and west of Central Anatolia” in the context of the ro-ro lines between North Marmara and South Marmara;
  1. However, Çelebi Bandırma Uluslararası Limanı İşletmeciliği A.Ş. did not violate the Article 6 of Law No. 4054, therefore there is no need to impose any administrative monetary fines on the relevant undertaking under the Article 16.

The Board pronounced its final decision on the full-fledged investigation conducted against Association of Turkish Travel Agencies, TÜRSAB Seyahat Acentaları Hizmetleri Tic. Ltd. Şti., Turser-Tursav Servis Sigorta Acenteliği Ltd. Şti. and Gulf Sigorta A.Ş. (17.10.2018; 18-39/631-306).

The Turkish Competition Board (“Board”) recently pronounced its final decision regarding the full-fledged investigation conducted against Association of Turkish Travel Agencies, TÜRSAB Seyahat Acentaları Hizmetleri Tic. Ltd. Şti., Turser-Tursav Servis Sigorta Acenteliği Ltd. Şti. and Gulf Sigorta A.Ş. in order to determine whether Association of Turkish Travel Agencies has violated the Law No. 4054 on Protection of Competition (“Law No. 4054”) by obligating the agencies which organize Hajj and Umrah travels to purchase mandatory package tour insurances from its subsidiary, engaging in discriminatory behavior by collecting handling fees from certain agencies, while not collecting from others and stipulating the purchase of transport and catering services in Saudi Arabia from the undertaking it has determined.

As the result of the full–fledged investigation, through its meeting dated 17.10.2018 and decision numbered 18-39/631-306, the Board decided that;

  • Association of Turkish Travel Agencies has violated the Article 4 of Law No. 4054 by obligating the agencies which organize Hajj and Umrah travels to purchase mandatory package tour insurances from the undertaking that is its subsidiary
  • Therefore, to impose administrative monetary fine over the annual turnover determined by the Board for the financial year of 2017 on Association of Turkish Travel Agencies in the amount of TL 521.679,18, pursuant to Article 16(3) of the Law No. 4054 and Articles 5(1)(b), 5(2) and 5(3)(a) of “Regulation on Monetary Fines for Restrictive Agreements, Concerted Practices, Decisions and Abuses of Dominance”, the Board unanimously decided to impose an administrative monetary fine over the annual turnover determined by the Board for the financial year of 2017 to;
  • the transaction regarding the acquisition of Turins Sigorta A.Ş. by Gulf Sigorta A.Ş. is not subject to the mandatory filing in scope of Communiqué No. 2010/4 on the Mergers and Acquisitions Subject to the Approval of the Competition Board, therefore there is no need to take action regarding the relevant acquisition;
  • “Exclusive Distribution/Agency Agreement” that is signed between Turins Sigorta A.Ş. and Turser-Tursav Servis Sigorta Acenteliği Ltd. Şti. on June 7th, 2016 and still valid between Gulf Sigorta A.Ş. and Turser-Tursav Servis Sigorta Acenteliği Ltd. Şti. benefit from the block exemption falls under the scope of the Block Exemption Communiqué on Vertical Agreements No. 2002/2; and
  • TÜRSAB Seyahat Acentaları Hizmetleri Tic. Ltd. Şti., Turser-Tursav Servis Sigorta Acenteliği Ltd. Şti. and Gulf Sigorta A.Ş. did not violate the Law No. 4054, therefore there is no need to impose administrative monetary fine on these undertakings.

The Board launched a full-fledged investigation against Aegean Container Shippers Association and 10 member undertakings (19.09.2018, 18-33/549-M and 01.11.2018;18-41/660-M ).

The Turkish Competition Board (“Board”) has concluded the preliminary investigation conducted based on the allegations that Aegean Container Shippers Association and its members

has violated the Article 4 of Law No. 4054 on Protection of Competition (“Law No. 4054”) by way of determining prices.

The Board found that the relevant allegations and findings are serious and adequate, and decided to launch a full-fledged investigation through its decision dated 19.09.2018 and 18-33/549-M and the decision 01.11.2018 and numbered 18-41/660-M against the undertakings listed below in order to determine whether the relevant undertaking has violated the Article 4 of Law No. 4054:

  1. Arma Grp Loj. Tur. Tic. Ltd. Şti.
  2. Çardak Kardeşler Nak. Tic. Ltd. Şti.
  3. Ege Konteyner Nakliyecileri Derneği
  4. Fuat Taşımacılık Otomotiv. San. ve Tic. Ltd. Şti.
  5. Karataş Lojistik Kerem Karataş
  6. Öztürk Kırşehir Nak. Ulus. Taş. İnş. Turz. San. ve Tic. Ltd. Şti.
  7. Seçkinler Loj. Nak. Gıd. ve Kom. Ltd. Şti.
  8. Serhat Loj. Müm. Güm. Nak. Tic. Ltd. Şti.
  9. Ulupınar Nakliyat ve Orman Ürünleri Tic. ve San. Ltd. Şti.
  10. Pantrans Uluslararası Deniz ve Kara Taş. Ltd. Şti.
  11. Yanardağ Lojistik A.Ş.

The Board pronounced its final decision on the full-fledged investigation conducted against Turkcell İletişim Hizmetleri A.Ş., Vodafone Telekomünikasyon A.Ş. ve TT Mobil İletişim Hizmetleri A.Ş. (08.11.2018; 18-42/670-329).

The Turkish Competition Board (“Board”) recently pronounced its final decision regarding the full-fledged investigation conducted against Turkcell İletişim Hizmetleri A.Ş., Vodafone Telekomünikasyon A.Ş. and TT Mobil İletişim Hizmetleri A.Ş. in order to determine whether the relevant undertakings have violated the Article 6 of Law No. 4054 on Protection of Competition (“Law No. 4054”) by way of obstructing the competitors’ activities by giving offers lower than the short message termination prices in short message tenders.

In light of all the evidences, information and documents collected, investigation report and written defenses, the Board unanimously decided in its meeting dated 08.11.2018 and decision numbered 18-42/670-329 that;

  • Turkcell İletişim Hizmetleri A.Ş., Vodafone Telekomünikasyon A.Ş. and TT Mobil İletişim Hizmetleri A.Ş. are in dominant position respectively in “market for SMS termination services in Turkcell network”, “market for SMS termination services in Vodafone network” and “market for SMS termination services in TT Mobil network”
  • On the other hand, Turkcell İletişim Hizmetleri A.Ş., Vodafone Telekomünikasyon A.Ş. ve TT Mobil İletişim Hizmetleri A.Ş. did not violate the Article 6 of Law No. 4054; therefore there is no need to impose any administrative monetary fines on these relevant undertakings under Article 16.

The Board pronounced its final decision on the full-fledged investigation conducted against Sodexo Avantaj ve Ödüllendirme Hizmetleri A.Ş., Edenred Kurumsal Çözümler A.Ş., Network Servisleri A.Ş., Multinet Kurumsal Hizmetler A.Ş., Winwin Hizmet Yönetimi Sanayi ve Ticaret A.Ş. and Set Kurumsal Hizmetler A.Ş.  (15.11.2018; 18-43/694-339).

The Turkish Competition Board (“Board”) recently pronounced its final decision regarding the full-fledged investigation conducted against Sodexo Avantaj ve Ödüllendirme Hizmetleri A.Ş., Edenred Kurumsal Çözümler A.Ş., Network Servisleri A.Ş., Multinet Kurumsal Hizmetler A.Ş., Winwin Hizmet Yönetimi Sanayi ve Ticaret A.Ş. and Set Kurumsal Hizmetler A.Ş.  in order to determine whether the relevant undertakings have violated the Law No. 4054 on Protection of Competition (“Law No. 4054”).

In light of all the evidences, information and documents collected, investigation report, written defenses, explanations at the oral hearing meeting; the Competition Board rendered its final decision set forth below in the Board’s meeting dated 15.11.2018 and decision numbered 18-43/694-339;

  • The Board unanimously concluded that Sodexo Avantaj ve Ödüllendirme Hizmetleri A.Ş., Edenred Kurumsal Çözümler A.Ş. and Network Servisleri A.Ş., an entity established by these undertakings, violated Article 4 of the Law No. 4054 through their activities causing coordination,
  • Therefore, pursuant to Article 16(3) of the Law No. 4054 and Articles 5(1)(b), 5(2), 5(3)(b), 6(1) and 7(1) of “Regulation on Monetary Fines for Restrictive Agreements, Concerted Practices, Decisions and Abuses of Dominance”, the Board unanimously decided to impose an administrative monetary fine over the annual turnover determined by the Board for the financial year of 2017 to;
  • Sodexo Avantaj ve Ödüllendirme Hizmetleri A.Ş. in the amount of TL 3,207,702.79
  • Edenred Kurumsal Çözümler A.Ş. in the amount of TL 3,919,367.39
  • Network Servisleri A.Ş. in the amount of TL 624,038.41
  • The Board unanimously concluded that Multinet Kurumsal Hizmetler A.Ş., Set Kurumsal Hizmetler A.Ş., Winwin Hizmet Yönetimi Sanayi ve Ticaret A.Ş. did not violate the Law No. 4054 and therefore there is no need to impose an administrative monetary fine on the relevant undertakings,
  • The Board unanimously decided to send an opinion to the Ministry of Finance regarding the potential inconveniences in the application of Law No. 4054 that could result from the difference between the accounting methods of the undertakings active in the meal cards sector.

The Board published the reasoned decision on the preliminary investigation conducted against Frito Lay Gıda San. Tic. A.Ş. (12.06.2018, 18-19/329-163).

The Turkish Competition Board (“Board”) published the reasoned decision on the preliminary investigation conducted against Frito Lay Gıda San. Tic. A.Ş. (“Frito Lay”) based on the allegations of the complainant, who was a former sales chief of Frito Lay, that the relevant undertaking has violated the Law No. 4054 on the Protection of Competition (“Law No. 4054”) by excluding its competitors and engaging in exclusivity practices.

Frito Lay is a Turkish subsidiary of Pepsi Co. Int. (“PepsiCo”). Frito Lay is active in packaged chips market through its Lay’s, Ruffles, Doritos, Cheetos, A la Turca, Çerezza brands and active sugared products market through its Rocco brand.

In its evaluation on the relevant product market definition, the Board stated that, in line with its previous decisions in the same sector, the relevant product market could be defined as the “packaged chips market,” in which Frito Lay is active in Turkey. Furthermore, the Board provided general information on the packaged chips market and stated that the market in question could be characterised as a tight oligopoly market, where the sales are mostly conducted by Frito Lay (through its Lay’s, Ruffles, Doritos, Cheetos, A la Turca, and Çerezza brands) and DOĞUŞ (through its Patos, Cipso, Chips Master, and Çerezos brands) in Turkey. The Board also defined the relevant geographic market as “Turkey.”

The Board's Substantial Assessment

The Board began its assessment by stating that the complainant mainly alleged that Frito Lay had engaged in de facto exclusivity practices through granting certain incentives to sales points, including discounts. In this regard, the Board found that the complainant had failed to provide sufficient evidence to support its exclusivity allegations and that the documents collected during the on-site inspections conducted at Frito Lay’s premises did not support or substantiate exclusivity allegations either. On the other hand, the Board also declared that the fact that Frito Lay had granted various incentives to sales points and distributors (including discounts) necessitated a more detailed analysis as to whether Frito Lay’s practices had led to de facto exclusivity in the relevant market.

Furthermore, the Board asserted that, since one of the documents collected during the on-site inspection implied that Frito Lay had intervened in distributors’ resale prices and given that the Board had previously examined resale price maintenance (“RPM”) allegations against Frito Lay in 2017, a separate examination should be conducted as to whether Frito Lay had engaged in RPM practices. Accordingly, the Board reviewed the complainant’s allegations under two separate categories, namely: (i) abuse of dominance through de facto exclusivity behaviours and rebate systems, and (ii) RPM practices implemented through handheld terminals.

As for the evaluation on the issue of dominant position, the Board did not provide a precise assessment as to whether Frito Lay enjoyed a dominant position in the market, and opted to directly proceed with the examination of the relevant practices.

Assessment on de facto exclusivity and rebate systems

Before examining the specific allegations of the complainant, the Board provided some theoretical background on the subject matter and referred to its landmark decisions involving rebate systems. The Board first noted that, under the Guidelines on the Assessment of Exclusionary Abusive Conduct by Dominant Undertakings (“Guidelines on Dominant Undertakings”), rebate systems are considered to be an important tool for increasing efficiency and consumer welfare, as well as fuelling competition among undertakings by lowering prices, increasing output and product diversity, reducing transaction costs resulting from the purchase of individual products, and preventing or reducing the “free-rider” problem. In this regard, the Board observed that, in case such discounts are granted by undertakings holding a dominant position in the relevant market, these may cause de facto or potential exclusionary effects in the market. Accordingly, the Board declared that a dominant undertaking may create de facto exclusivity and foreclose the market by preventing or hindering its competitors' access to the essential channels, thereby restricting its competitors' ability to appear as effective competitors against the dominant undertaking.

The Board then proceeded to assess the complainant’s allegations, by first stating that the agreements concluded between Frito Lay and its distributors did not contain any exclusivity clauses. The Board also noted that the documents collected during the on-site inspections did not imply or suggest that Frito Lay had engaged in exclusivity or exclusionary practices in the relevant market.

On the other hand, the Board observed that Frito Lay established sales objectives for its sales points and granted certain incentives (such as discounts, free products, display prices and stands) to the sales points in order to entice them to attain these objectives. In this regard, the Board concluded that it was necessary to carry out a more detailed analysis as to whether Frito Lay’s strategy had an effect of de facto exclusivity and market foreclosure in the relevant market.

In its detailed analysis, the Board first noted that Frito Lay’s strategy enabled the salespersons of Frito Lay's distributors to receive higher premiums if they reached the relevant sales objectives, and thus, the system increased the employees' motivation to attain the objectives and increase their sales. In this regard, the Board first compared Frito Lay’s growth objectives to the general growth level in the relevant market in order to assess whether Frito Lay’s practices had had an effect in the market. Accordingly, the Board concluded that Frito Lay’s growth objectives were not significantly different from the general growth level in the market. The Board also conducted a separate analysis regarding the İzmir market, where Frito Lay had established higher growth targets compared to other regions. To that end, the Board determined that (i) Frito Lay’s growth objectives had only been applied for a relatively short period of time (5 months), (ii) Frito Lay had not implemented such an elevated growth objective before 2018, and (iii) there had been successful new entries into the market. Based on all these considerations, the Board ultimately concluded that that there were no grounds or factors leading the Board to initiate a full-fledged investigation against Frito Lay in connection with its rebate systems.

Assessment on the resale price maintenance

As for the allegations that Frito Lay had engaged in RPM practices through handheld terminals, the Board first provided general explanations and background information on the evaluation of RPM issues under the Turkish competition law regime, specifically by referring to Article 4 of the Law No. 4054, Article 4 of the Block Exemption Communiqué No. 2002/2 on Vertical Agreements (“Communiqué No. 2002/2”), and the Guidelines on Vertical Agreements. To that end, the Board stated that one of the documents collected during the on-site inspection indicated that the distributors’ resale prices were set by Frito Lay's headquarters, and that the distributors were not in a position to change or adjust the prices that were defined in (i.e. uploaded onto) the handheld terminals.

In this regard, the Board first referred to its previous Frito Lay decision (11.01.2007; 07-01/12-7), where it had evaluated the RPM allegations against Frito Lay and had decided to send an opinion letter to Frito Lay asking it to abstain from the practices under investigation on the basis of Article 9 of the Law No. 4054, rather than initiating a full-fledged investigation. That decision was based on the limited use of handheld terminals and the distributors’ tendency to set different prices, even though the Board concluded that the handheld terminal system used by Frito Lay had the potential of preventing distributors from setting their own resale prices. The Board also referred to another of its decisions (18.07.2013; 13-46/588-258), in which it had once again evaluated Frito Lay’s handheld terminal system and concluded that there were no grounds to initiate a full-fledged investigation against Frito Lay, since the system under scrutiny gave distributors enough room and opportunity to change the prices defined in the handheld terminal system.

Pursuant to its examination of Frito Lay’s distributorship agreements with respect to the legislative framework applying to distributorship agreements, the Board determined that Frito Lay’s agreements complied with the rules outlined in the Communiqué No. 2002/2. The Board also conducted a separate analysis as to whether Frito Lay had intervened in distributors’ resale prices in practice through the meetings it had conducted with them. As a result of its examination, the Board concluded that there was no information or document supporting the allegation that Frito Lay had determined the resale prices of its distributors, and thus decided not to initiate a full-fledged investigation regarding the RPM allegations relating to the handheld terminals.

In light of the foregoing, ultimately the Board decided not to initiate a full-fledged investigation pursuant to the Article 41 of Law No. 4054.

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’’.

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.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Contact the Author?
Click here to email the Author
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Free Personalized News Alert: Sign-up/Edit
Other Turkey Advice Centres
Tax
Intellectual Property
Privacy and Data Protection
More Advice Centers
Significant Recent Cases
Turkish Competition Board case summaries.
Useful Resources
A collection of articles, essays and reports written by our experts.
On the occasion of the 20th anniversary of competition law practice in Turkey, we have written and published an academic publication we hope will be valuable to the global discussion and study of competition law issues. The book is comprised of 12 academic articles and is a collaborative effort of lawyers specialising in competition law at ELIG Gürkaynak, including junior associates and novices in the field, in addition to Gönenç Gürkaynak’s own extensive contribution to each and every article.
The most recent developments within our firm and practice areas.
Upcoming Events
Information on upcoming or recent events and conferences hosted by ELIG Gürkaynak Attorneys-at-Law.
ELIG Gürkaynak has hosted a Turkish competition law webinar in collaboration with Lexology. During the webinar, head of our competition law and regulatory practice, Mr. Gönenç Gürkaynak, introduces remedies and Phase II reviews under the Turkish merger control regime.
Tools
Font Size:
Translation
Channels
Mondaq on Twitter

|
|
© Mondaq® Ltd 1994 - 2018
All Rights Reserved
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

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