The Turkish Competition Board ("Board") recently published its Taxim/Doğanay decision1 where it overruled its case handlers' monetary fine suggestion for gun-jumping. This is a quite significant case for the Turkish merger control regime in terms of the demonstration of the standard of proof sought for the finding of an infringement. Besides, it is noteworthy for other aspects such as the 'coincidental' nature of the case, as outlined below.
Developments Leading to the Decision
The relevant transaction (the "Transaction") concerned the acquisition of the 100% shares of Doğanay Gıda Tarım ve Hayvancılık San. ve Tic. A.Ş. (a beverage company, "Doğanay") by Purple Beverages S.A.R.L. ("Purple"), an SPV of the acquirer Taxim Capital Partners I Limited Partnership ("Taxim Capital"). Subsequent to the notification of the transaction to the Turkish Competition Authority ("Authority") on July 22, 2020, the Board granted an approval to the Transaction through its decision of September 10, 2020 and numbered 20-41/566-251. The Board's approval decision was officially served to the notifying party on September 18, 2020.
On March 2021, the Board decided to launch a preliminary inquiry2 against 13 undertakings, including Doğanay, operating in the fast-moving consumer goods market to determine whether the relevant undertakings have infringed Article 4 of the Law No. 4054 on Protection of Competition ("Law No. 4054") through a set of actions including price fixing, sharing of competitively sensitive information and resale price maintenance. During the on-site inspection conducted at the premises of Doğanay within the said FMCG preliminary inquiry, the Authority's officers detected certain information and documents indicating that Taxim Capital may have intervened in Doğanay's business, by determining the prices, during the interim period3, before the Board's approval decision.
Indeed, the Authority's officers found and seized copies of certain WhatsApp correspondences dated August 10, 2020 and September 1, 2020 (whereas the Board's approval decision was rendered on September 10, 2020) between managers/employees of Taxim Capital and employees of Doğanay within the WhatsApp group named 'Doganay CEO+Taxim'. These correspondences include specific discussions on Doğanay's business such as the sales prices of Doğanay branded turnip beverages, potential price increase levels for the relevant product, and the potential outcome of an increase in the (.....) prices in the organized retail in terms of bringing the prices in the traditional channel to the desired level.
Upon the findings above indicating the existence of a potential infringement of the suspension requirement stipulated under Article 7 of the Law No. 4054, the Authority's rapporteurs prepared an information note stating that; the change of control arising from Transaction was realized before the Board's approval, and thus, an administrative monetary fine should be imposed against the acquirer as per Article 16/1 of the Law No. 4054 for that reason.
Standard of Proof: The Board's examination and decision on the gun-jumping concern
In the examination of the matter, the Authority first requested information on the price changes of Doğanay branded turnip beverages between August 01, 2020 and September 30, 2020, for the three largest cities of Turkey. At the end, the Board confirmed that the price strategies discussed in the 'Doganay CEO+Taxim' WhatsApp group was in fact realized.
The Authority then requested from Taxim Capital to provide explanation on the matter and specifically, as to whether the sole control of Doğanay was transferred to Taxim Capital on the dates mentioned in the relevant correspondence. In its response, Taxim Capital stated that Doğanay's sole control was not transferred to Purple and therefore to Taxim Capital de jure or de facto during the dates of the correspondences; all of the people in the relevant WhatsApp group were related to Taxim Capital, and none of them had a job in Doğanay at that date; the said price increase was made by Doğanay's management at that date without any direction or influence of Taxim Capital and that Taxim Capital was only informed about this issue; (.....), who was included in the correspondences was determined as the "Interim Period Observer", and was authorized to monitor Doğanay's daily management during this period pursuant to the Share Purchase Agreement, the sole purpose of which was to protect the financial strength of the target company until the closing.
Upon examination of the facts, despite the suggestion of the rapporteurs, the Board decided that there was no infringement of suspension requirement, since it could not be definitively concluded from the information and documents that Taxim Capital had a decisive influence on Doğanay's prices, prior to the Board's approval decision to the Transaction.
The Taxim/Doğanay decision is important in terms of demonstrating that causal link is most certainly a requisite that should be south in gun-jumping cases. Moreover, it not only gives a general idea on the Authority's methodology in examination of a potential early change of control scenario, but also demonstrates that the Authority may still conduct an examination after the Board's approval to the relevant M&A transaction. Accordingly, the parties of a merger or acquisition transaction should always ensure that the interim period management is structured in a manner that is compliant with competition law. Lastly, the Taxim/Doğanay decision is the last chain of a series of decisions where the case was built on WhatsApp correspondences.4
1. The Board's Taxim/Doğanay Decision dated April 29, 2021, no. 21-24/280-125.
2. The Board's Decision dated March 17, 2021 and no. 21-14/177-M
3. The term 'interim period' is commonly used in merger/acquisition transaction documents to define the period between the signing of the transaction agreement (e.g. a share purchase agreement) and the closing, i.e. the consummation of the transaction.
4. We should note that examining the applications, most notably WhatsApp, in managers/employees personal or work phones have become the rule at the Authority's on-site inspections, after the amendment on the Law No. 4054 officially setting forth the jurisdiction to examine all digital data and the publication of the Authority's Guidelines on the Examination of Digital Data during On-Site Inspections. For some decisions on that front, see the Board's Ciceksepeti decision dated May 27, 2021, and no. 21-27/354-173, Unmas Decision dated May 20, 2021, and no. 21-26/327-152, IGSA decision dated 12.08.2021 and no. 21-38/544-265, Fatih Romorkorculuk decision dated July 29, 2021, and no. 21-36/486-254, Trendyol decision dated April 29, 2021, and no. 21-24/287-130.
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