The Board published the reasoned decision on the full-fledged investigation against Artı Marin Elektrik Dış Ticaret Ltd. Şti. and Mastervolt International Holding BV. (11.05.2016, 16-16/278-122)
The Turkish Competition Board (“Board”) published the reasoned decision on the full-fledged investigation conducted against Artı Marin Elektrik Dış Ticaret Ltd. Şti. (“Artı Marin”) and Mastervolt International Holding BV. (“Mastervolt”). The case arose out of the allegations that Artı Marin and Mastervolt have violated Article 4 of Law No. 4054 on the Protection of Competition (“Law No. 4054”) by restricting Eltesan Mobil Teknoloji Sistemleri San. Ve Tic. A.Ş.’s (“Eltesan”) sales of Mastervolt products in Turkey through parallel trade. Mastervolt is a Netherlands based company, which manufactures energy solutions to be used in marine vehicles and platforms, land vehicles and solar energy fields. Artı Marin is the exclusive distributor of Mastervolt products in Turkey.
Pursuant to Paragraph 20 of the Guidelines on the Definition of Relevant Market, the Board decided not to define relevant market, since such definition would not have an effect upon Board’s assessment.
As a result of its assessment, the Board found that Artı Marin and Eltesan are respectively the authorized distributors of Mastervolt and Waeco in the market for mobile power equipment such as energy invertors, convertors and batteries. In this regard, the Board found that beginning from 2009, Eltesan sold Mastervolt products in Turkey by way of parallel trade, where the Mastervolt products have been supplied to Eltesan by Mastervolt’s authorized reseller in Austria. In this regard, the documents submitted by the complainant provide that Mastervolt products are being sold in Turkey since 2009, where the restrictive actions of the investigated parties (both joint and separate actions) took place between 2010 and 2015.
In its reasoned decision, the Board prominently assessed the parallel trade from the EU competition law perspective. In this regard, the Board analyzed the Consten and Grundig decision of European Court of Justice (“ECJ”) and found that the EU application considers the agreements restricting parallel trade, which have their object of restricting competition law, anticompetitive without further conducting an effects-basis analysis.
In this regard, the Board stated that, in accordance with the EU case law, the consensus between Artı Marin and Mastervolt towards the restriction of parallel trade might be sufficient to conclude that the relevant parties’ applications are in breach of competition law. However, the Board has emphasized the structural differences between the EU and Turkey (i.e. the EU common market consist of different national markets, while there is a single national market in Turkey) and stated that the restriction of parallel trade might lead to different outcomes in Turkey, compared to the EU jurisdiction. In this regard, the Board indicated that the structural differences of Turkey might require considering case-specific issues and conducting an effects-based analysis to determine that there is a competition law violation.
Therefore, the Board found that it would be possible to conclude that there was an agreement between the investigated parties towards restricting the sales of Mastervolt products to Turkey through other dealers. On the other hand, the Board found that Eltesan’s sales amounts of Mastervolt products has not decreased significantly throughout the period that is subject to investigation. Therefore the Board assessed that the efforts of the investigated parties were not clearly systematic and successful. In addition to this, the Board analyzed that although there has been an effort by Artı Marin towards the restriction of parallel trade, the documents obtained during the investigation period did not create the impression that Mastervolt acted in accordance with such efforts throughout the entire investigated period of 2010-2015.
In light of the above, the Board concluded that the information at hand was not sufficient to come to the conclusion that there has been a restrictive agreement between the investigated parties and that such agreement have produced any effects within the relevant product market. Consequently, the Board refrained from imposing any administrative fines on the undertakings subject to the investigation.
This document is not intended to create an attorney-client relationship. You should not act or rely on any information in this document without first seeking legal advice. This material is intended for general information purposes only and does not constitute legal advice. If you have any specific questions on any legal matter, you should consult a professional legal services provider.
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