In May 2017, the Turkish Competition Board (the "Board") launched an investigation against Sahibinden Bilgi Teknolojileri Pazarlama ve Ticaret A.Ş. ("Sahibinden.com"). The investigation aimed at exploring the validity of allegations of abuse of dominance by excessive pricing in terms of online platform services for real estate sales/rental for commercial customers. In September 2017, the Board decided to launch an additional investigation against Sahibinden.com in terms of online platform services for vehicle sales/rental for commercial customers and proceed with a joinder investigation for both categories of Sahibinden.com's activities.
After sixteen months of investigation, the Board unanimously resolved that Sahibinden.com is in a dominant position in Turkey in terms of the markets for (i) online platform services for real estate sales/rental and (ii) online platform services for vehicle sales. Furthermore, the Board concluded by way of majority of the votes that Sahibinden.com abused its dominant position within the meaning of Article 6 of Law No. 4054 on Protection of Competition through applying excessive prices in these markets and imposed a turnover-based administrative monetary fine against Sahibinden.com in the amount of TL 10,680,425.98 (approximately EUR 1,543,414 based on today's exchange rate) through its decision dated 01.10.2018 and numbered 18-36/584-285.
The decision is a candidate to set a landmark precedent in terms of the excessive pricing analysis in an online market, and it is globally the only one of its kind in an online ads market. The reasoned decision, which is expected to be published in the following months, is likely to provide further insight and detailed explanations as to the Board's assessment in terms of determination of (i) dominant position and (ii) excessive pricing in dynamic markets. Gönenç Gürkaynak, Esq., Partner of ELIG Gürkaynak Attorneys-at-Law, representing sahibinden.com, criticized the approach adopted by the Board, commenting that "it is extremely concerning to see that brick-and-mortar market reflexes are making heavy inroads into enforcement in online markets, especially in a form of allegation such as excessive pricing, which should be traded very carefully anyway".
Mr. Gönenç Gürkaynak is a partner of ELIG Gürkaynak Attorneys-at-Law. He holds an LLM degree from Harvard Law School, and is qualified to practise in Istanbul, Brussels, New York, and England and Wales (at present a non-practising solicitor). Before founding ELIG Gürkaynak in 2005, he worked as an attorney in the Istanbul, New York and Brussels offices of a global law firm for more than eight years.
Mr. Gürkaynak heads the competition law and regulatory department of ELIG Gürkaynak, which currently consists of 45 lawyers. He has unparalleled experience in Turkish competition law counselling issues with more than 20 years of experience, starting with the establishment of the Turkish Competition Authority. Every year Mr. Gürkaynak represents multinational companies and large domestic clients in more than 35 written and oral defences in investigations of the Turkish Competition Authority, about 15 antitrust appeal cases in the high administrative court, and over 85 merger clearances of the Turkish Competition Authority, in addition to coordinating various worldwide merger notifications, drafting non-compete agreements and clauses, and preparing hundreds of legal memoranda concerning a wide array of Turkish and EC competition law topics.
Mr. Gürkaynak frequently speaks at conferences and symposia on competition law matters. He has published more than 150 articles in English and Turkish by various international and local publishers. Mr. Gürkaynak also holds teaching positions at undergraduate and graduate levels at two universities, and gives lectures in other universities in Turkey.
ELIG Gürkaynak Attorneys-at-Law is committed to providing its clients with high-quality legal services. We combine a solid knowledge of Turkish law with a business-minded approach to develop legal solutions that meet the ever-changing needs of our clients in their international and domestic operations. Our competition law and regulatory department is led by our partner, Mr. Gönenç Gürkaynak, along with three partners, three counsel and 40 associates. In addition to unparalleled experience in merger control issues, ELIG Gürkaynak has vast experience in defending companies before the Turkish Competition Board in all phases of antitrust investigations, abuse of dominant position cases, leniency handlings, and before courts on issues of private enforcement of competition law, along with appeals of the administrative decisions of the Turkish Competition Authority. ELIG Gürkaynak represents multinational corporations, business associations, investment banks, partnerships and individuals in the widest variety of competition law matters, while also collaborating with many international law firms. During the past year, ELIG Gürkaynak has been involved in over 85 merger clearances by the Turkish Competition Authority, more than 35 defence projects in investigations, and over 15 antitrust appeals before the administrative courts. ELIG Gürkaynak also provided more than 75 antitrust education seminars to employees of its clients. ELIG Gürkaynak has an in-depth knowledge of representing defendants and complainants in complex antitrust investigations concerning all forms of abuse of dominant position allegations, and all forms of restrictive horizontal and/or vertical arrangements, including price-fixing, retail price maintenance, refusal to supply, territorial restrictions and concerted practice allegations. In addition to significant antitrust litigation expertise, the firm has considerable expertise in administrative law, and is well equipped to represent clients before the High State Court, both on the merits of a case and for injunctive relief. ELIG Gürkaynak also advises clients on a day-to-day basis in a wide range of business transactions that almost always contain antitrust law issues, including distributorship, licensing, franchising and toll manufacturing issues.
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.