New season warms up as the Turkish Competition Board turns the spotlight on automotive, pharmaceutical, banking and media sectors by initiating four new cartel investigations
Subsequent to the amendments to Law no. 4054 on the Protection of Competition ("Law No. 4054"), by way putting into effect Law no. 57281 , the Turkish anti trust regime introduced stricter and more deterrent fining regime, coupled with a leniency and immunity program for companies. In light of this trend, the Turkish Competition Authority ("the Board") had been busy over the last year trying to reinforce the cartel regulations with the new Regulation on Active Cooperation for Discovery of Cartels ("Regulation on Leniency") which entered into force in February, 2009. Although couple of investigations, such as the Peugeot distributors investigation, were launched following the new set of rules, it would not be wrong to state that the Board has been rather on hold for the last couple of months.
At the end of August however, first of the four investigations was revealed by the Board. The Board announced on August 25, 2009 that with its decisions dated 19.8.2009 and 24.8.2009, it launched an investigation against the eight largest banks of Turkey, namely, Türkiye Garanti Bankası A.Ş., Akbank T. A.Ş., Türkiye İş Bankası A.Ş., Yapı ve Kredi Bankası A.Ş., Türkiye Vakıflar Bankası T. A.O., Finans Bank A.Ş., Denizbank A.Ş., Yapı ve Kredi Bankası A.Ş. (for the activities of Koçbank A.Ş.) and T. Halk Bankası A.Ş. (for the activities of Pamukbank T. A.Ş.).
It has been announced that the investigation was launched by basing on the allegations that the above mentioned banks have agreed upon the rebates which are offered to public and private institutions regarding their salary payments.
The Board has also declined the complaints alleging Garanti Bankası A.Ş., Akbank T. A.Ş. and HSBC Bank A.Ş. for having agreed upon the salary rebates to be paid to the personnel of the Ministry of Culture and Tourism as no evidence was found.
Next up in the list was Doğan Holding, which is the largest media group in Turkey active in both written and visual media as well as other sectors. Following the investigations conducted regarding the complaints alleging that Doğan Yayın Holding A.Ş., Hürriyet Gazetecilik ve Matbaacılık A.Ş., Doğan Gazetecilik A.Ş., Bağımsız Gazeteciler Yayıncılık A.Ş. and Doğan Daily News Gazetecilik ve Matbaacılık A.Ş. have breached the Law no. 4054 on Protection of Competition with their activities in the sales of advertisement spots in written media (newspapers), the Turkish Competition Board has decided to launch a fully fledged investigation towards the said undertakings, which are all part of the Doğan media group, to determine whether an infringement has really occurred.
September 30, 2009 was also an important day for the Board as it shook the competition law circles in Turkey with two new investigations. First, the Board has stepped up to execute one of the largest scale investigations in the automotive sector. The investigation covers almost all of the automobile manufacturers and importers in Turkey with nineteen companies on the hook. The Board announced that the reason behind this investigation is the allegations of the said companies sharing target and stock information and sales and price strategies since 2006.
The second news of the same day (i.e. September) was the investigation launched towards the Turkish Pharmacists' Association. The Board decided to investigate the said association on the basis of the allegations that the Turkish Pharmacists' Association has urged the pharmacies to boycott a number of drug manufacturers and importers for decreasing the discounts and terms offered to pharmacies, thus determining, from outside the market, the purchase conditions of pharmacies.
Together with these investigations and the flat steel decision2, whose reasoned decision was revealed on September 29, 2009, the Board has shown very clearly that it will not tolerate any actions hindering or obstructing competition in Turkey. As a reminder, the Board, after conducting the necessary investigations in the market for flat steel, imposed a fine of over 20 million TL to Ereğli Demir Çelik Fabrikaları T. A.Ş., which is one of the largest steel manufacturer in Turkey, and a total fine of over 23.5 million TL to three undertakings. It is also noteworthy to mention that this decision has now taken its place in the hall of fame as the highest fine imposed to one company and the highest fine imposed to multiple companies rendered on the basis of Article 43 of Law No. 4054.
A careful consideration of the new developments revealed that the Turkish Competition Authority is quite anxious to trigger its investigative powers under the new concept of cartel enforcement, and that it is getting more and more determined in its combat against cartels and other forms of anticompetitive conduct.
Footnotes
1. Law No. 5728 Amending Certain Laws for the Harmonization with the Fundamental Criminal Laws, which entered into force on February 8, 2008.
2. Turkish Competition Board's decision dated 16.6.2009 and numbered 09-28/600-141.
3. Article 4 of Law No. 4054 reads as follows; "All agreements between undertakings, decisions by associations of undertakings and concerted practices which have or may have as their object or effect the prevention, restriction or distortion of competition within a Turkish product or services market or a part thereof are prohibited."
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