Turkey: Highlights On The Turkish Competition Authority's Recent Investigations

Last Updated: 14 December 2017
Article by Sera Erzene Yildiz, LLM and Ömer Bulgak

1. Introduction

The Turkish Competition Authority ("TCA") has been very active in the last three months. The TCA concluded ongoing investigations against companies active in iron- steel, alcoholic beverages and banking industries as well the pending merger review into the ro-ro transportation. In the meantime, the TCA launched investigations against; (i) Sahibinden.com into its alleged abuse of dominance, (ii) Sony Turkey into its alleged resale price maintenance practices, (iii) the Association of Turkish Travel Agencies into its alleged tying and discriminatory practices, and (iv) Radontek Medical into its alleged abusive practices. The purpose of this article is to draw attention to recent activities and approaches of the TCA and to show the recent decisions as a whole. As the reasoned decisions in relation to the concluded investigations have not been released on the TCA's website yet, an overview of the competition law developments in Turkey is provided below.

2. Newly Launched Investigations

2.1. One More Investigation Launched into Sahibinden.com

The TCA concluded the preliminary inquiry into the claim that, Turkey's leading second hand online platform, Sahibinden.com has abused its dominant position in the online automotive listing market by excessive pricing.

The TCA resolved to launch an investigation (decision No 17-30/488-M dated October 13, 2017) to examine whether Sahibinden.com has abused its dominant position in the relevant market by implementing excessive prices. The Competition Board ("the Board") also decided to combine this investigation with the one initiated earlier, to observe whether the company has abused its dominant position in the online real estate sale/leasing services for corporate client market by excessive pricing (according to the Board's decision No 17-15/175-M dated May 4, 2017).

Under this investigation, the TCA will first evaluate whether Sahibinden.com is in dominant position in these markets and whether the company's pricing strategy (implementation of significantly higher commission rates) could be evaluated as "excessive" within the scope of Article 6 (abuse of dominant position) of the Law numbered 4054 ("Turkish Competition Law").

2.2. Investigation into Sony Eurasia Initiated

The TCA conducted a preliminary investigation into Sony Eurasia, upon complainants' allegations that the company has violated Turkish Competition Law by determining the resale price of products sold by its dealers.

After evaluating the information and documents collected during the preliminary investigation, the TCA decided on 07 September 2017 to conduct a full-fledged investigation into Sony Eurasia in order to evaluate whether Sony Eurasia violated the Turkish Competition Law by determining the resale price of the products sold by its dealers.

Under Article 4 of Turkish Competition Law, resale price maintenance is prohibited and thus, any practice of either directly or indirectly imposing a fixed or minimum resale price in the downstream market within the scope of the vertical relation constitutes a serious breach of the Turkish Competition Law. Within this framework, the TCA has adopted a strict approach against the resale price maintenance practices, although the recommended resale prices or determination of a maximum resale price are generally considered as non-violating practices. A case-by-case assessment of such practices is required.

2.3. Investigation Launched into the Association of Turkish Travel Agencies (TÜRSAB), TÜRSAB Seyahat Acentaları Hizmetleri and Gulf Sigorta

The TCA launched an investigation against four undertakings active in the tourism sector, namely TÜRSAB, TÜRSAB Seyahat Acentaları Hizmetleri Tic. Ltd. Şti., Turser-Tursav Sigorta Acenteliği Ltd. Şti. and Gulf Sigorta A.Ş., which are suspected of having infringed Turkish Competition Law.

TÜRSAB has allegedly violated the Turkish Competition Law by (i) forcing the agencies organizing pilgrimages to Hajj and Umrah to buy package tour insurance policies from its own subsidiary, (ii) discriminating among agencies by allowing some of them not to pay the so-called service charge and (iii) demanding that agencies buy transportation and catering services from specific Saudi undertakings.

Following the evaluations of the information and documents collected during the preliminary investigation, the TCA resolved on August 22, 2017, to conduct a full-fledged investigation into the above-mentioned undertakings in order to evaluate whether these practices constitute a violation of the Turkish Competition Law.

2.4. Investigation Launched into Radontek Medikal

The TCA conducted a preliminary investigation into Radontek Medikal, a distributor of cancer diagnosis and treatment devices, upon complainants' allegations that the company has abused its dominant position in the aftermarket and spare parts by implementing excessive and discriminatory pricing on the tenders organized by hospitals.

Following the evaluation of the information and documents collected during the preliminary investigation, the TCA resolved on August 9, 2017, to conduct a full-fledged investigation into Radontek Medikal, in order to evaluate whether the company has abused its dominant position in the market.

3. Concluded Investigations

3.1. Investigation of 13 Banks Operating in the Field of Corporate Loans

The TCA completed the investigation conducted in order to determine whether 13 banks (Bank of Tokyo-Mitsubishi UFJ Turkey A.Ş., Citibank A.Ş., Deutsche Bank A.Ş., HSBC Bank A.Ş., ING Bank A.Ş., Istanbul Turkey Branch of JPMorgan Chase Bank N.A. incorporated in Columbia Ohio, Merrill Lynch Yatırım Bank A.Ş., Istanbul Main Branch of Société Générale (S.A.) incorporated in Paris France, Standard Chartered Yatırım Bankası Türk A.Ş., Sumitomo Mitsui Banking Corporation, Istanbul Main Branch of The Royal Bank of Scotland Plc. incorporated in Edinburgh, Türk Ekonomi Bankası A.Ş. and UBS AG) providing loans to corporate customers in Turkey violated Turkish Competition Law through (i) exchange of information on the loan conditions of the current loan agreements such as interest, term (due date) and (ii) exchange of commercially sensitive information on other financial transactions.

As a result of the assessment of the Board in the light of the information and documentation obtained in the course of the investigation, it was resolved that BTMU Turkey, ING and RBS have violated the Turkish Competition Law by exchanging commercially sensitive information. On this basis, ING was fined TRY 21,112,960.50 (app. EURO 4,638,376.13 based on the Central Bank of Turkey's exchange rates on December 7, 2017) and RBS was fined TRY 66,429.75 (app. EURO 14,594.17 based on the Central Bank of Turkey's exchange rates on December 7, 2017). The fines were calculated on the basis of the banks' respective gross revenues generated in 2016. Under the same decision, the TCA resolved that CITI, DB, HSBC, JP, BOFA, SG, SC, SMBC, TEB and UBS did not violate Turkish Competition Law and that there were no grounds to apply fines. On the other hand, BTMU Turkey was not fined based on Article 16/6 of the Competition Law, which sets out that the companies cooperating with the TCA may be immune from applicable fines, based on the qualification, efficiency and timing of such cooperation.

3.2. Phase II Review Concluded into the Ro-Ro Transportation Merger

The TCA concluded its Phase II review conducted according to the Board's decision No 17-11/133-M dated 23 March 2017 regarding the acquisition by UN Ro-Ro İşletmeleri A.Ş. ("U.N. Ro-Ro") of all of the shares in Ulusoy Deniz Taşımacılığı A.Ş., Ulusoy Gemi İşletmeleri A.Ş., Ulusoy Ro-Ro İşletmeleri A.Ş., Ulusoy Ro-Ro Yatırımları A.Ş., Ulusoy Gemi Acenteliği A.Ş., Ulusoy Lojistik Taşımacılık ve Konteyner Hizmetleri A.Ş. and Ulusoy Çeşme Liman İşletmesi A.Ş. ("Ulusoy").

As a result of the Phase II review, the Board resolved on November 9, 2017, that; (i) the acquisition by U.N. Ro-Ro of all of the shares of Ulusoy was subject to authorization pursuant to the Communiqué no. 2010/4 Concerning the Mergers and Acquisitions Subject to the authorization of the Board, (ii) the notified transaction would not result in creating or strengthening a dominant position in the market for shipping agency services, (iii) the transaction would strengthen U.N. Ro-Ro's dominant position in the market for ro-ro transportation between Turkey and Europe (including the ro-ro lines departing from Istanbul, Izmir and Mersin) and thus significantly restrict the competition in this market, (iv) as a result of the transaction, U.N. Ro-Ro would be in a dominant position in the market for ro-ro port management and therefore the competition in this market would significantly lessen, and therefore (v) the notified acquisition shall not be cleared.

3.3. Investigation Conducted about Mey İçki is Concluded

The TCA has initiated on May 2, 2016, an investigation into the activities of Turkey's leading alcoholic beverages producer, Mey İçki to determine whether the company has abused its dominant position by foreclosing its competitors in vodka and gin markets through rebate schemes. After an investigation of nearly 1.5 years, the TCA has adopted its final decision, marking the TCA's first implementation of non bis in idem / no double punishment for the same action principle.

As a result of the discussion by the Board on October 25, 2017, the TCA decided that Mey İçki abused its dominant position in the gin and vodka markets by foreclosing its competitors in the vodka and gin markets through its rebate schemes. However, taking into consideration the fact that Mey İçki's practices in question (i) have the same nature as its past practices in the raki market, which had been regarded as a violation, with administrative fines imposed according to the decision of the Board No 17-07/84-34 dated February 16, 2017, (ii) were conducted at the same period, and (iii) formed a unity as a part of the general strategy of the undertaking, the Board decided that it was not necessary to impose administrative fines. The decision is noteworthy since it is the first instance where the TCA applied the non bis in idem / no double punishment for the same action principle.

3.4. Investigation Conducted into Steel Companies is Concluded

Following its review of the TCA's decision dated January 27, 2011 and numbered 11-06/101-34, the 13th Chamber of the Council of State (2011/2373 E.; 2016/777 K.) resolved on March 22, 2016, to overturn the mentioned decision, on the basis that the TCA should have conducted a full-fledged investigation to thoroughly analyze the allegations, instead of closing the file through a preliminary investigation. The TCA thereafter initiated on August 18, 2016, an investigation into the practices of Turkish iron and steel market players, Kardemir Karabük, Çağ Çelik, Çelsantaş Çelik, Yolbulan Demir and Yolbulanlar in order to determine whether these undertakings have violated Article 4 (anti-competitive agreements), Article 6 (abuse of dominance) and Article 7 (notification of mergers) of the Competition Law.

As a result of the investigation which approximately lasted one year, the TCA resolved on September 7, 2017, that the practices of the investigated companies did not constitute a violation of the Articles 4 and 6 of the Competition Law. The TCA further concluded that the statute of limitations in relation to the establishment of joint control by Yolbulan, Güleç and Yücel groups over Kardemir has expired and therefore, there was no necessity to establish a procedure.

Conclusion

Both concluded and ongoing investigations play a significant role in the promotion of competition law culture in the Turkish business environment, as they render it possible for the businesses to further analyze the relevant markets and understand the TCA's approach to allegedly anticompetitive practices. In addition, the Board's acknowledgment of "non bis in idem" principle stands out as an example that the TCA follows its global counterparts' path.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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.

Authors
Ömer Bulgak
Similar Articles
Relevancy Powered by MondaqAI
 
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”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
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