"Prohibited Activities Agreements, Concerted Practices and Decisions Limiting Competition" titled article 4 (four) of the Law No. 4054 on the Protection of Competition ("Law") regulates that agreements and concerted practices between undertakings, and decisions and practices of associations of undertakings with the aim or effect of prevention, distortion or restriction of competition directly or indirectly in a particular market for goods or services are illegal. In this context, the concept of "information exchange" that can be conducted between undertakings can be evaluated from various perspectives in terms of its limits within the framework of agreements, concerted practice and decisions restricting competition within the scope of article 4 (four) of the Law. The concept of information exchange in terms of competition law is defined as "the sharing of commercial information that affects or has the potential to affect strategic market behaviours and competitive decisions, unilaterally or mutually, between actors operating in the same market" and to the extent that it constitutes an agreement, concerted practice or decision of association of undertakings of the above-mentioned type or is part of an agreement, concerted practice or association of undertakings decision, it falls within the scope of article 4 (four) of the Act1.
As verifiable data and information regarding past or current production and sales quantities, prices, demands and costs, customers, capacities, investments and R&D studies or technology and similar are subject to information exchange within the framework of competition law; the statements of intent regarding prices, quantities, new products or capacity changes that companies plan to implement in the future are also covered by it2.
II. INFORMATION EXCHANGE IN TERMS OF THE CHARACTERISTICS OF INFORMATION
In information exchanges between competing undertakings, the characteristic of the exchanged information has a decisive importance in determining whether the exchange of information constitutes an act preventing competition or not. In this context, in the Maple Flooring3 case, which the minimum price was determined by the Wood Flooring Association, although the United States Court of Appeals determined that the information subject to exchange allowed the result of a quantity or price agreement, it did not find it illegal since the information was (i) retrospective, (ii) publicly accessible, (iii) not creating a unison in terms of price and (iv) directed to a useful purpose in terms of promptly determining the delivery prices by the members of the union.
The Competition Board ("Board"), on the other hand, in its precedent decision; concerning the nature of information exchange regarding the investigation carried out based on the findings that the enterprises operating as hot air balloon operators and tourism agencies in the Cappadocia region have established a joint sales and reservation channel, qualified all the information with similar characteristics, that is limiting the essential competition parameters of the market in case of sharing, that is transpiring the essential competition parameters of the market, that is eliminating the uncertainties that the undertakings have regarding each other's actions, particularly the price and production amounts including cost, sales data, capacity utilization rates, offer specification contents, contract clauses and stock status, as sensitive information in terms of competition atmosphere and evaluated the exchange of competitively sensitive information such as price, production or sales amount that competitors plan to apply in the future, as a cartel, since it is generally for price or quantity determination, and stated that it would constitute a violation of competition in terms of purpose4.
Another issue that should stand out in the relevant precedent decision is that whether or not the exchange of anti-competitive information is performed unilaterally or mutually does not matter. If the undertaking receiving the information that makes the competitive environment transparent, does not publicly share with its own preference that it does not want to receive the information or does not inform the competition authorities, it will be considered as a party to the concerted action as a result of the effect of the action subject to the information exchange.
III. EVALUATION OF INFORMATION EXCHANGE IN TERMS OF MARKET
In order to accurately assess the impact of information exchange practices between undertakings on competition, the characteristics of the market along with the characteristic of the information should be taken into account. In the Guide5 dated 14.01.2011 published by the European Commission, if the information exchange between undertakings operating in the same market takes place in transparent, concentrated, low product differentiation static and symmetrical markets, information exchange may restrict competition since the relevant markets structurally have a higher coordination risk than others. stated that their effects will be higher compared to different market conditions and that their effects will be higher compared to different market conditions. On the other hand, in the case of information exchange in markets where concerted practise risk is low, the said action may increase the transparency of the market, reduce market complexity and make the structure of the market more suitable for the cooperation of actors. For this reason, when evaluating information exchange, it is necessary not to ignore the structure of the market along with its effects on the market.6
In the Guideline on Horizontal Cooperation Agreements ("Guideline") published by the Competition Authority, it is emphasized that the effect of sharing information on competition depends on factors related to the structure of the market, such as the degree of concentration, transparency, stability, complexity and similarity of undertakings in the market.7
The Board, in a precedent decision examining the "flat steel products" market, considered the information exchange between undertakings operating in the relevant market as a factor providing a basis for the formation of covered or open collaborations between competitors, and found it illegal by basing its decision on the factors that a small number of undertakings operate in the relevant market, high concentration rates in the market, and the existence of barriers to entry to the market.8
The effect of the concept of "information exchange" between undertakings operating in the same market on the competition market is a subject that has been discussed for a long time in both foreign legal systems and the Turkish legal system. Actors in the market exchange past, current or prospective data such as price, quantity, technology with each other, and these exchanges directly or indirectly affect the competitive environment, as a result, the relevant companies are in violation with competition market and are faced with sanctions.
As the nature of the exchanged information becomes more sensitive (price, production, cost, etc.), the possibility of violating competition regulations increases. In addition to the characteristics of the information, the characteristics of the concrete market in which the actors operate (transparency of the market, stability, number of actors, etc.) are also important while evaluating whether information exchange practices constitute a violation of competition or not. In this context, although some de facto criteria can be determined within the scope of the relevant legislation and case-laws regarding the evaluation of the concept of "information exchange", relevant parties, the concept of information exchange and market assessment specific to dispute is evaluated and it is determined that whether there is an "information exchange" that will constitute a violation within the scope of the law, and accordingly, legal sanctions are imposed on the relevant parties.
1 A. Önder, B. Saripinar, I. Gizay Dogan, "Information Exchange under the Association of Undertakings in the Light of Three Current Precedent of the Competition Board" 2021, (accessed on https://www.mondaq.com/turkey/antitrust-eu-competition-/1091372/rekabet-kurulu39nun-gncel-karari-i351i287inda-te351ebbs-birli287i-atisi-altinda-bilgi-de287i351imi-).
2 S. Pismaf, "Information Exchange Between Undertakings in Economic and Legal Perspective, Competition Authority Specialization Thesis Series No: 115", Ankara, 2012, p. 5-6.
3 Maple Flooring Association v. United States 268 U.S. 563, 1925.
4 Competition Board Precedent numbered 21-17/209-87 and dated 25.03.2021
5 Guidelines on The Applicability of Article 101 of The Treaty on The Functioning of The European Union to Horizontal Cooperation Agreements [2011/C 11/01], para. 77-85.
6 Pismaf, p. 60.
7 Guideline on Horizontal Cooperation Agreements para. 43.
8 09-28/600-141 numbered and 16.6.2009 dated Precedent Decision of Competition Board.
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