According to the 2018 data published by Competition Board of Turkey ("Board"), e-commerce market is one of two markets with largest M&A transaction volume in "Wholesale and Retail Trade", which is also the second largest field with respect to M&A transaction value.1 The growth rate of e-commerce market in Turkey was 37% in 2017 while it was 24% in 2016, 31% in 2015 and 35% in 20142. In this respect, e-commerce is one of the fastest growing sectors in economy and expected to keep this fast growth for a long period. In fact, according to data as to the first quarter of 2018, e-commerce market started the year with 40% growth3. The trade volume of commerce reached to 42,2 billion Turkish Lira. In the last year, the global players such as Amazon also entered to the market. In this article, this fast-growing sector is examined with regard to competition law regulations.
2 E-Commerce Definition
E-commerce was defined as "production, distribution, marketing, sale or delivery of goods and services by electronic means" in the Declaration on Global Electronic Commerce adopted by Second Ministerial Conference of World Trade Organization ("WTO") in 19984; "any economic and commercial activity carried out in the electronic environment without being physically present" by Code on Regulating the Electronic Commerce numbered 6563; and as "sale or purchase of goods or services, whether between businesses, households, individuals or private organizations, through electronic transactions conducted via the internet or other computer-mediated (online communication) networks" by Eurostat.5
As seen above, e-commerce may basically be defined as carrying out commercial activities through internet in the broadest sense. Board, however, adopted the definition of WTO. Board defined e-commerce as "any production, promotion, distribution of goods and services through the networks that are not subject to the privet ownership such as internet"6.
Different models of e-commerce are utilized for different type of businesses and sale method of enterprises. These models are explained hereinbelow.
Business to Business ("B2B"): B2B is the model which both parties are businesses. B2B e-commerce enables conducting complex business processes between suppliers and business partners through internet. An enterprise can order delivery from suppliers, pay the price of the products received, provide or receive i7nvoice through specifically designed websites or software. Chinese Alibaba is one of the most well-known B2B e-commerce enterprises.
Business to Consumer ("B2C"): B2C is the model which the seller is a business and buyer is a consumer. This model may also be referred as "e-retail"8. Amazon and Hepsiburada are two of the most well-known B2C e-commerce enterprises in the market.
Consumer to Consumer ("C2C"): C2C is the model that the both parties are consumers. Generally, used goods are sold in such market9.
Beside the models mentioned hereinabove, Business to Government, Consumer to Business, and Government to Consumer are some other models of e-commerce.
3 Market Definition
3.1 Defining "E-Commerce" Market
"Relevant product market" is the market consisting a product and other products highly substitutable with it. In order for two products to be considered in the same product market, they must be similar in respect to their quality, utilization purpose and prices from the viewpoint of customers.
E-commerce is a relatively new, growing and rapidly changing commerce area. As the market becomes more complex, the old market definitions become less accurate. For example, in a decision dated 201510 4 different models of e-commerce were recognized while it had been only 2 in a decision dated 200811. E-commerce market has been defined variously in past decisions of Board. In some decisions the term "e-commerce" was used for "e-retail market" while in other decisions it is used for any activity of production, promotion, distribution of a product or a service through networks, such as internet, that is not subject to private ownership. Such inconsistency renders the examination relatively hard. In this respect, the most recent approach of Board12 has been taking into consideration in this article and the "e-commerce market" term is admitted as any activity of production, promotion, and distribution of goods and services through internet while for the business-to-consumer model, the term "online retail market" or "e-retail market" is preferred. In this respect, e-commerce market is the widest market definition contains those markets such as online retail, online food order and delivery, online recruitment, online marketplace and other narrower market definitions. In previous years, Board preferred the broad definition while determining whether any violence of competition law occurred. Board justified such preference in its decisions dated 2008 as "Due to the flexible structure of internet environment and ability to carry out all commercial activities through only one website"13. This reasoning may be practical with regard to total transaction volume of e-commerce market at that time; but as the volume of the market is growing very fast, the growth is stable and it's expected to keep growing in next couple decades, actual and more accurate market definitions may become necessary in order to determine the actual effects of transactions. Defining the market broadly as "e-commerce market" and considering a website providing service in online food delivery business and a website providing online recruitment services in the same market may cause wrong results in the future. Moreover, defining different types of commercial activities as separate market would be more accurate as they satisfy different needs of consumers in the terms of demand-side substitutability.
Another problem arises while determining the market is that almost anything may be sold online unless forbidden by law or prevented by nature of the product or service. Some and even maybe most of products sold online are also sold in traditional markets. In this matter question of whether online sales form an independent market or online sale is only another platform where the products are sold arises. Board developed a test in previous years in order the determine a market definition for the trade of products. According to this test, as a rule, if online sales compete with traditional sales, sales through both platforms must be considered as one unified market. But if the product or the service is new and only available online or providing the product or the service online has superior advantages over providing such products and services in traditional means, trade of such particular product or service must be defined as a unique and independent market14.
The following decision is a good example of this test being carried out.
"At the notified transaction, the website www.ucuzcu.com, which is an affiliate of MIH Allegro, is a search engine that enables customers to make their choice more easily by comparing the prices of the products sold online, especially electronics. On the other hand, www.giyimodam.com is an e-commerce website through which various garments are sold. www.markafoni.com, which is owned by Vipinidirim (acquired enterprise), is a website through which garments, household goods and cosmetics are sold to its members. The activities of www.ucuzcu.com must be considered as an activity carried out only by e-commerce and has no substitution in the traditional market. On the other hand, www.giyimodam.com and www.markafoni.com may be considered as a channel competing in the same market as the traditional stores. As both websites provide many of the products sold at the traditional stores and selling those online do not have any significant advantages over the traditional sale channels with respect to the supply or demand, these websites may be said to be included in the first category. With regard to the other website, it may be considered as to be included in the second category which e-commerce channel must be defined as a separate market"15.
In this decision, Board evaluated the e-commerce practice with respect to its availability and advantage to sale online. As www.ucuzcu.com provides services only available online, Board defined the relevant market as an independent and unique one. Since the other two websites provide products and services that are sold in traditional markets, Board examined whether selling such products online has any significant advantages over traditional sales. Since Board were not convinced that it has any advantages over traditional means, the sale activities found closer to be in the same market as traditional sales rather than an independent market. Such test has been conducted very successfully while determining specific markets as explained hereinbelow in next section.
3.2 Spesific Market Definitions
The vast majority of websites providing online services usually focus on one or only a limited number of services. Board tends to define the market for online services more specifically. Therefore, many different market definitions were made rather than defining a e-commerce market which includes any kind of online commercial activity.
While defining the market, as explained above, if online sales compete with traditional sales, the online market shall not be defined as an independent market. On the other hand, if the service is new and available only online or providing online has superior advantages over providing via traditional means, such market must be defined as an independent and unique market.
In this regard, various markets were defined by Board. As an example, Yemek Sepeti is a website that brings restaurants and customers together and enables customers to order their meal online. Board discussed whether ordering food online has any advantages over ordering by phone. Board emphasized that by ordering online, costumers may compare prices for different restaurants, follow up the promotions easier, order food anywhere and anytime, leave comment for the restaurant and this way the service may get better by time; restaurants, especially small restaurant, have a better chance to promote their services and get known in the market. Takin all of these into consideration, Board decided that ordering online has multiple advantages both for customers and the restaurants. Therefore, the market is defined as "online food order and delivery service market"16.
Another market definition is "online recruitment services market". Kariyer is a website through which employees post their job posts and applicants submit their resumes to those who demand workforce. Although recruitment services may also be provided via employment agencies and printed media (such as job posts), Board drew attention to superior advantages of online recruitment such as ease of filing, registering, detailed classification, keeping the data at a database for a long time, need of less capital comparing to printed media or employment agencies, and last but not least speed of internet that enables job seekers to act faster; and consequently defined the online recruitment market as an independent market.17
Sahibinden and Hürriyet Emlak are two websites that (along other services) bring real estate brokers and house hunters together and enables house hunters to see pictures of the houses without visiting each of the houses and also seek available houses and compare their prices. Ease of utilization, accessibility and save of time are some advantages of this online service for both parties. Therefore, the relevant market is defined as "real estate sale/lease services for corporate customers"18.
Çiçeksepeti is a website enables customers to order flower and certain other gift items, and request those to be delivered to other addresses. Board emphasized that there are important differences between selling flowers in physical stores and the selling flowers online. Consumer is not limited with the working hours of the store, may reach the service from anywhere that has internet infrastructure, can compare prices faster and more efficiently, has wider choice alternatives, has ability to track the delivery of the flower that is to be delivered to another location and several other advantages. In this respect "online flower sale services" is defined as an independent market.19
As seen from the examples above, Board did not limit itself with the wide definition of "e-commerce" and but rather defined the markets more specifically and more accurately. The relevant market must be defined on the basis of the type of the service and it must also be considered whether the online sales compete with the traditional sales or the service is only available online or providing online has certain superior advantages over providing the service in traditional means.
4 Abuse of Dominant Position
Dominant position is an enterprise's ability to determine economic parameters such as price, supply, demand, production and distribution amount by acting independent from its competitors. An enterprise becoming dominant in a market by its internal dynamics is not prohibited. But if actions of a dominant enterprise constitute an abuse, such actions would become a violation of competition law. Abuse of dominant position is explained as an enterprise gaining benefits that it wouldn't gain in competitive conditions.20 Examples of some actions of abuse are discrimination, excessive pricing, predatory pricing, obstructing competitors, tying, conditional sale, refusing to deal and etc.
In order to determine the abuse of dominant position, first of all the dominance must be determined. While making an assessment for dominant position, in the most basic sense, enterprise's ability to act independent from competitive pressures is examined. During such examination, each case shall be evaluated based upon the unique facts of the case. Several different measurements altogether must be taken into account while making assessment. Position of the enterprise and its competitors in the market, barriers to entry, barriers to grow and expand, bargaining power of buyers, competitive structure of the market are some of those that must be considered.
4.1 Current Structure of E-Commerce Market and Lack of Dominant Position
Current structure of e-commerce market in Turkey doesn't allow for abuse of dominant position. The reason is very simple and not very hard to guess. There is no dominant competitor in the market so far although dominance exists in specific markets such as online food delivery market. Beside not having a dominant competitor, structure of e-commerce market is also open for new entries as certain unique features of e-commerce ease the new entries to the market. Some of these features are low start-up cost for entrepreneurs, low selection and research cost for customers and low transaction cost for both parties. And also, its innovative and fast-growing tendency also render entries easier. Board discussed whether e-commerce market is open for new entries in its following decision:
"There are many other players active in the relevant market beside said website. Among these, there are websites such as www.sahibinden.com and www.verdimgitti.com which practice in sale of used goods and auction as much as websites such as www.hepsiburada.com, "www.bidolu.com" and www.ideefixe.com which practice in sale of brand new products. The entry of many new players into the market demonstrates that there are no barriers of entry into the market"21.
Although there are many new entries into the market, there are also many exits. In this respect, Board also draw attention to a threshold for sustainability of the business. This critical point is an enterprise becoming able to cover at least their middle range expenses. Enterprises exceed this critical point may remain standing in the market. Board has drawn attention to this critical point in its several decisions in order to emphasize the changeability of market structure.
4.1.1. Abuse of Dominant Position by Excessive Pricing in E-Commerce Market
Excessive pricing is a controversial type of abuse of dominant position. Excessive pricing may be explained as an enterprise setting its prices unreasonably high by taking advantage of barriers to entry and its dominant position. In a competitive market, the prices are supposed to be determined by the demand and supply. But in a market with barriers to entry, the dominant market may set its price above price equilibrium for that product in the market. This power is similar to those in monopolistic markets. In order to protect the consumer and the competition, Board interferes to excessive pricing. In order to evaluate whether prices are excessive, a two-step test is applied. First, the cost and price of the product is compared. The profit margin is compared with its competitors. Second, the price of the product is compared with prices of the same enterprise and with prices of its competitors. The abuse, if there is any, is determined over the results of these two tests. Board's previous examinations as to the excessive pricing is very successful and very consistent.
In order for excessive pricing to constitute an abuse, the enterprise which imposes the prices must be dominant in the market. The lack of dominant position prevents such actions to constitute an abuse. In this respect, no matter how high the prices are, such action may not be prohibited as consumers are always able to choose another supplier and substitute such goods in a market with no barriers to entry. As mentioned above, e-commerce market is open for new entries. Therefore, abuse of dominant position by excessive pricing is not very likely in such structure. Board examined the market and reached to the same conclusion as "Considering that Gittigidiyor.com has reached to a high trading volume and has high number of users, it is very likely that it exceeds the threshold to survive in the market and even form a network effect. Based on this, it is very likely for the enterprise to reach to an important market power. Nevertheless, the existence of the enterprises entering and exiting the market and the lack of barriers of entry exhibits that the abuse of dominant power by excessive pricing are unlikely in this market in the meaning of competition law"22.
In conclusion, abuse of dominant position by excessive pricing is not very likely so far in the e-commerce market due to lack of dominance in and barriers to entry to the market. But in narrower market definitions, it is very likely if structure of the market is contrary. As shall be explained below, Board decided that Sahibinden, a website (along other activities) operates in the online real estate sale/lease market, abused its dominant position by excessive pricing. This also demonstrates that accurate market definition is vital for determining the actual effects of transactions.
4.1.2. Abuse of Dominant Position by Predatory Pricing in E-Commerce Market
Predatory pricing may be defined as sale of products in exchange for unreasonably low prices by dominant enterprise in order to eliminate its competitors in a market. In order for predatory pricing to constitute abuse, the enterprise which imposes such prices must be in dominant position. If the enterprise in question is not dominant in the market, such actions do not cause an abuse even though it may reduce the business of other enterprises. In this respect, abuse of dominant position by predatory pricing is not very likely in the e-commerce market so far. Board's decision as "Considering the existence of many other websites selling cell phones, it is evident that the website "www.hizlial.com" is not dominant in the relevant product market. It is not possible to claim that an enterprise which is not dominant abuses its dominant position by predatory pricing etc."23 also confirms such statement.
4.2 Abuse of Dominant Position in Spesific Markets
As explained hereinabove contrary to the e-commerce market, some markets are defined more specifically as the services provided in those markets are usually allocated to a single or only a few service topics. As market definitions narrower, dominance is more likely to exist in many of the specific markets. Such structure of the online specific markets enables any kind of abuse of dominant position. One of the most recent cases in this regard is Sahibinden case, in which Sahibinden was sentenced to an administrative fine for abusing its dominant position by excessive pricing in online real estate sale/lease services and online vehicle sale markets. There have been several other decisions in which Board decided that dominant position was abused in spesific markets. Three decisions as to the abuse of dominant position claims are examined hereinbelow. Among those, in the first decision, Board found application of the most favored customer ("MFC") clause restrains competition and ruled to administrative fine. MFC clauses are not prohibited per se, this decision is examined in order to demonstrate a case in which MFC clause restrained the competition and prohibited by Board. The other two decisions are as to the excessive pricing claims.
4.2.3. Yemek Sepeti Decision
Yemek Sepeti is an enterprise carries out its business in online food order and delivery market. Yemek Sepeti brings restaurants and customers together in an online platform and enable customers to order form the restaurants online. Restaurants pay a commission for each order they receive through Yemek Sepeti. The complaint (in one aspect) arises from the most favored customer clause of the service agreement between Yemek Sepeti and the restaurants. MFC clause is not per se prohibited by provisions of Competition Law. Whether the MFC clause restraints the competition must be evaluated for each individual case.
As Yemek Sepeti was accused with abuse of dominant position, in order to reach a conclusion, first, Board examined whether Yemek Sepeti was dominant in online food order and delivery market. Board examined market shares of the enterprises in the market and determined that Yemek Sepeti almost controls the whole market with respect to the market shares. Board did not confine itself with the market shares and examined chain restaurant portfolio of each enterprise in the market since Board's consideration was that having chain restaurants in restaurant portfolio is a key for success for new entries. The results were none of the other enterprises has any chain restaurants in their portfolio. Board also examined the market structure and durability and success rate of the new entries. The most of the new entry attempts into the market resulted with fail. Considering all of these data, Board confirmed Yemek Sepeti's dominant position.
After confirming Yemek Sepeti's dominant position, Board examined whether Yemek Sepeti abused this dominant position. The MFC application of Yemek Sepeti, prevented the competitor platforms from applying lower prices and even presenting special offers that they bear the costs and expenditures of which. Differentiating the services and terms presented to the customers is vital in order to make an effective entry into and gain a place in the market. This differentiation is the most important competition component against the existing enterprise in the market. Since the restaurants were obliged to apply the same prices and special offers to the sales that they made through Yemek Sepeti, such MFC clause made impossible for the new entries to differentiate their services, present different menus or delivery areas to the customers. In this regard, the MFC applications made entering into and gain a place in the market difficult. The fact that the member restaurants either removed the special offers presented through the other competitors or reflected the same offers to Yemek Sepeti, and this prevented competitors from differentiate their services and as a result they either left the market or stayed as a local player demonstrated that the MFC had exclusionary effect in the market and therefore such act was prohibited by Board.24
4.2.2. Sahibinden Decision
Sahibinden is a website, carries out its business in the online multi category advertisement industry, by enabling the sellers post their advertisements on the website and in this way bringing them together with the possible clients. The claim was that Sahibinden abused its dominant position by charging the corporate members excessively. With respect of the claim, the relevant markets were defined as the online real estate sale/lease services and online vehicle sale services.
In order to evaluate the claim, as the first step, the examined whether Sahibinden is dominant in the market. Board emphasized that the dominant position is the enterprises ability to impose its decisions as to the economical parameters, including the prices, to the relevant actors (customers, competitors, etc.) independent from the other actors in the market, in other words, its ability to act independent from the competitive pressures. Board also expressed that the dominance demonstrates enterprise's ability to set the prices above the marginal cost. The higher the prices are with respect to the marginal cost; the stronger enterprise's market power is. In this respect, board examined Sahibinden's ability to set prices above the marginal cost and also its power to impose its decisions as to the economical parameters, in addition to Sahibinden's the market share and barriers to entry to the market.
In both markets, Sahibinden's price increase was much higher than the competitors through the given term. Although the price increase was much higher, number of its corporate clients also kept increasing bigger than the competitors and the income gained from the corporate clients were also vastly increased. This picture demonstrated Sahibinden's ability to increase its prices independent from the competitive pressure since in the perfect competitive market, an increase in the price of an enterprise would direct the clients to the competitors. The increase in the price of Sahibinden's services did not strengthen its competitors' market power and Sahibinden had the ability to increase its prices more than its competitors without bearing any cost. Board also determined the barriers to entry to the relevant market. According to Board, because of the network effects25, although creating a website in order to enter to the market does not require a great volume of capital, because of network effect, enterprises had to invest in promotion and advertisement in order to gain a place in the market. This way, more visitors may enter the website, and such increases the value of the website and make it more attractive for the customers, which is vital for the market power for a new entry. Cost of operating in multiple platforms is also a barrier to entry for the new enterprises. Sahibinden's market share were also above fifty percent. All of these data together found sufficient to determine Sahibinden's dominant position.
After determining the dominant position, Board examined the abuse of dominant position claims. In order to determine such, two separate assessments conducted. First, the profit margin test was applied. As there is no fixed determined excessive profit margin, Board compared the profit margin of Sahibinden with its competitors. The profit margin of Sahibinden was several times more than those whose profit margin was the closest. And second the prices of Sahibinden is compared with the prices of its competitors. Its prices were also several times more than its closest competitors. The higher prices did not cause its customers to choose its competitors because of the network effects.
Considering all of these above, Board deduced that Sahibinden abused its dominant position and sentenced Sahibinden to administrative fine.26
4.2.3. Kariyer Decision
Kariyer is an online recruitment website that brings the job posters and job seekers together as much as storing the CV and other information of the job seekers for firms. Kariyer was claimed to abuse its dominant position by obstructing its competitors' activities through charging higher prices than the average market prices. In order to evaluate the abuse of dominant position claim, Board first determined whether Kariyer was dominant in the market. Board examined the market shares of Kariyer and its competitors and determined the dominance both by considering that Kariyer holds the majority of the market shares and also had been keeping its market share since the date it entered into the market. After determining that Kariyer was dominant in the market, Board fix its attention on whether Kariyer abused its dominant position. According to Board, Kariyer is able to charge higher prices due to durability of its database, investment made to its technology, having a customer representative for each customer, accessibility, having a customer representative in all of the metropolitans. Also, as Kariyer increased prices, certain level of customers chose other alternatives instead of Kariyer which demonstrated unlike Sahibinden case explained hereinabove, customers have other alternatives against Kariyer's price policies. Kariyer had a reasonable ground to charge higher prices. Moreover, the price level of Kariyer made the other alternatives more attractive and certain number of Kariyer's customers chose those websites over Kariyer, therefore no obstructing its competitors' activities was determined. In this respect Board decided that Kariyer did not abuse its dominant position and closed the case.27
4.2.4. Special Condition for Online Marketplaces
Online marketplaces are websites where service or product is provided by multiple third parties. As third parties are the suppliers of the goods or services, the website only provides the platform where the trade is being carried out, organizes the payment, and sometimes enables the customer to track the delivery of the product. In this sense, enterprise which provides the marketplace has no role in determining price. In this respect, an enterprise which provides a marketplace may not be the subject for predatory or excessive price claims of the products sold in the website. Even if the Enterprise is dominant in market, and the prices were determined abusively, such action may not be attributed to the enterprise. Following decision also demonstrate this opinion.
"The complaint in question shall become significant in the scope of Code numbered 4054 only if the said website is dominant in the relevant product market. Nevertheless, Gitti Gidiyor is not the owner or the seller of the products and has no initiative on determining the prices of the products sold by various sellers. It is evident that said actions may not be attributed to Gitti Gidiyor considering that it has no function further than providing a platform to bring the sellers and buyers together. Addressee of these predatory pricing claims is not Gitti Gidiyor but the many and various sellers who sells the products through this website. While the number of users in 2009 was (...), it raised to (...) in 2010. In this respect, it does not appear possible, at least at the current situation, that any of these sellers, which exhibit a very atomized structure, becomes dominant in the market and abuse its dominant position by predatory pricing to the detriment of a population of sellers including the enterprises carrying out traditional sales"28.
5. Mergers and Acquisations
The mergers and acquisitions that constitutes or strengthens a dominant position in a market is prohibited if it restricts competition as its aim or effect as per Turkish Competition Law. In this respect, for certain mergers and acquisition to be valid, such transaction must be reviewed by Board and permission must be given. Some of acquisitions reviewed by Board was acquisations between Alibaba and Trendyol; eBay and Gittigidiyor; MIH Allegro and Markafoni; Amazon and Çiçeksepeti. All of these transactions were permitted by Board because of the reason that said transactions were neither sufficient to constitute/strengthen a dominant position nor restricts the competition in the market. As stated above, when the market is defined as the e-commerce market, neither enterprises has sufficient power and ability to form dominance. Overall market shares of the enterprises in the market are dispersed and each enterprise only has a slight market share. On the other hand, in the specific markets, such as online food delivery market, merger control would be stricter as market definition is narrower and dominance exists in said market. The following decisions also demonstrates that as the e-commerce market is open for new entries29, there are several active players in the market and market share of each enterprise is quite low; the merger and acquisitions did not constitute any competitive concerns.
"There are several other players in the market beside the parties to the notified transaction. Several electronic commerce websites are active in including www.hepsiburada.com, There are several other players in the market beside the parties to the notified transaction. Several electronic commerce websites are active in including www.hepsiburada.com, www.sahibinden.com, There are several other players in the market beside the parties to the notified transaction. Several electronic commerce websites are active in including www.hepsiburada.com, www.sahibinden.com, www.gittigidiyor.com, There are several other players in the market beside the parties to the notified transaction. Several electronic commerce websites are active in including www.hepsiburada.com, www.sahibinden.com, www.gittigidiyor.com, www.yemeksepeti.com and also Limango, Trendyol, Vipdükkan, Teknosa, Şehir Fırsatı and Hızlıal. Among those competitors, websites such as www.verdimgitti.com conducts sale of used goods and auctions, while websites such as Limango, Trendyol, Vipdükkan, Teknosa, Şehir Fırsatı and Hızlıal. Among those competitors, websites such as www.verdimgitti.com conducts sale of used goods and auctions, while websites such as www.ideefix.com conducts sale of brand-new goods. Based on the existence of many players in market and new entries are made it may be said that the market is very competitive and open to growth. In this scope, it has been decided that constituting or strengthening a dominant position by this transaction is not probable"30.
"As a result of the examinations and evaluations, it has been determined that the field of activity of the parties coincide but since the market shares of the parties are quite low and the market has not reached to saturation yet, the acquisition subject to the notification shall not conduce to a dominance or strengthening of dominant position in the market. In this respect, taking into consideration that the e-commerce market is still emerging, it has been decided that the transaction subject to the notification shall deemed as concentration causing competitive concerns, in such a market that that is very dynamic and growing very fast"31.
E-commerce market is one of the fastest growing markets in world and also in Turkey. The terö "e-commerce market" is the widest market definition and includes any kind of e-commerce activities. As the transaction volume, number of competitors increases and the market becomes more complex, more accurate and more specific market definition would be needed. In order to ensure this, the demand and supply substitutability must be taken into account and each market that serves the specific needs of customers must be defined as an independent market. As defined, the current structure of e-commerce market is very open for new entries and no dominance exist. Therefore, approval of abuse of dominant position claims doesn't appear probable, and mergers and acquisitions are usually approved by the board as they are not very likely to constitute or strengthen a dominance. Some markets are defined more specifically by Board. Some of these markets are online retail market, online marketplace market, online food delivery order and market, online recruitment market, online real estate sale/rent market, online flower sale market are some of those markets. Those markets also examined separately as to the abuse of dominant position and market definitions in this article. This article aimed to examine the e-commerce market in a very narrow sense and also emphasize the probable need to make a more specific and more accurate market definition in order to evaluate the actual effects of the transaction to the market.
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19 Competition Board; File Number: 2017-3-78 (Preliminary) Decision Number: 18-07/111-58 Decision Date: 08.03.2018
20 Aslan, İsmail Yılmaz. Rekabet Hukuku. İstanbul : Ekin Yayınevi, 2017
21 Competition Board, File Number: 2008-2-252 (Preliminary) Decision Number: 09-04/93-33 Decision Date: 4.2.2009
22 Competition Board; File Number: 2008-2-252 (Preliminary) Decision Number: 09-04/93-33 Decision Date: 4.2.2009
23 Competition Board; File Number: 2008-2-76 (Preliminary) Decision Number: 08-32/399-135 Decision Date: 8.5.2008
24 Competition Board, File Number: 2014-3-87 (Investigation) Decision Number : 16-20/347-156 Decision Date: 09.06.2016
25 The network effect appears when increased numbers of people or participants improve the value of a good or service. In e-commerce, as more people use a website, for example online market places, more suppliers would like to use such website in order to reach more people. On the other side, as more supplier available in the website, more people would visit such website because there would be more options. This situation requires vast amount of money invested to promotion and advertisement in order for the website to increase the number of visitors.
26 Competition Board, File Number: 2017-2-3 (Investigation) Decision Number: 18-36/584-285 Decision Date: 01.10.2018
27 Competition Board, File Number: 2011-2-349 (Preliminary) Decision Number: 11-55/1442-516 Decision Date: 02.11.2011
28 Competition Board File Number: 2011-2-254 (Acquisation) Decision Number: 11-39/836-260 Decision Date: 23.06.2011
29 Also see section 4.1
30 Competition Board; File Number: 2011-3-341 (Acquisition) Decision Number: 12-02/67-13 Decision Date: 19.01.2012
31 Competition Board; File Number: 2018-2-32 (Acquisition) Decision Number: 18-23/398-191 Decision Date: 18.07.2018
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