August 2022 – In July, the Turkish Competition Board (the "Board") approved eight merger control filings and published 32 reasoned decisions. The highlight of Turkish competition law in July is that many investigations were concluded.
Another excessive pricing allegation against Sahibinden.com
On 27 July, the Board announced that it has launched an investigation against Sahibinden.com, a leading online marketplace for vehicle/real estate sales and rental services, based on the allegation that it had abused its dominant position in the online platform service market for real estate and vehicle sales/rental services by applying excessive prices. This decision once again demonstrates that digital markets remain a focus of the Board.
Sahibinden.com has previously been subject to Board decisions on allegations that it abused its dominant position by applying excessive pricing in 2018 and 2020. In the first excessive pricing case, the Board initially fined Sahibinden.com for excessive rates for listings, but this decision was annulled by the Ankara 6th Administrative Court. In its reassessment of the annulled decision the Board decided not to impose an administrative monetary against Sahibinden.com in 2021. The Board also concluded the excessive pricing case in 2021 without imposing any fines.
Although no fines were imposed, the Board indicated in its previous decisions that Sahibinden.com is in a dominant position in the online platform service market for vehicle sales and real estate sales/rental activities. We look forward to the conclusion of this new investigation to shed more light on excessive pricing allegations in Turkey's digital industry.
The Board says no safe harbour for bread producer
Following a preliminary investigation launched by the Board in 2021, the Board has determined that Unmaş, a bread manufacturer, was involved in actions aimed at de facto exclusivity at retail outlets, but that as such practices benefited from a block exemption, there was no need to launch a full-fledged investigation.
In the same decision, the Board also decided to initiate a review to determine whether Unmaş benefits from the block exemption, even if the market share of Unmaş in the "packaged bread market" was less than 40% (the previous market share threshold to be able to qualify for the vertical block exemption safe harbour, now reduced to 30%). The Board stated that in cases where undertakings have significant market power and the barriers to entry is high, it will be difficult to meet the necessary conditions for the block exemption, and accordingly the packaged bread market must be examined more closely and the block exemption that Unmaş benefits from needs to be re-evaluated.
Although the Board did not find a breach of Turkish Competition Law under its preliminary investigation, as a result of the review of the block exemption granted to Unmaş it decided to remove Unmaş from the scope of the block exemption safe harbour for vertical agreements, as it was determined that the exclusivity agreements had effects incompatible with the conditions set out for the block exemption.
The Board fines online second-hand book sales platform for abusing its dominance
The Board published a reasoned decision regarding the investigation launched against Nadirkitap, an online second-hand book sales platform. The Board imposed an administrative monetary fine of approx. EUR 18,860 (TRY 346,765) based on the grounds that Nadirkitap was indeed in a dominant position in the market for platform services for second-hand book sales in Turkey and abused its dominant position.
In the reasoned decision, the Board determined the relevant market as platform services for second-hand book sales in Turkey on the grounds that:
- new book sales are not substitutable with second-hand book sales;
- second-hand book sales through traditional channels are not substitutable with online sales;
- book sales via marketplace platforms are not substitutable with sales conducted by undertakings acting on their behalf; and
- other marketplace platforms that sell books and other products are not substitutable with marketplace platforms that sell only books.
As a result of the investigation, the Board concluded that Nadirkitap unjustifiably prevented booksellers who want to sell their products via other intermediary service providers to access book data uploaded to Nadirkitap's website, which complicates the activities of competitor intermediary service providers. The Board also decided that Nadirkitap must provide the relevant bookseller with the book inventory data, in case of such a request from the bookseller.
The significance of this decision is that it reveals how the Board evaluates the relevant markets for marketplace platforms and the Board's precedents on data portability. In this respect, this decision can be considered a pathfinder in terms of marketplace platforms and data portability issues.
Another investigation concluded with commitment
With its decision dated 12 August 2021, the Board decided to launch an investigation into the allegation that Tadım Gıda abused its dominant position in the packaged dried nut market with exclusionary practices by complicating the activities of its competitors through interference with the prices of dealers and determining the resale price.
While the investigation process was on-going, Tadım Gıda presented a commitment package to initiate the commitment process regarding the competitive concerns in the file. On 7 July 2022, the Board considered that the commitments in question are proportional to the competition problems, are suitable for eliminating these problems, can be fulfilled in a short time, and can be implemented effectively. Consequently, the Board decided to conclude its investigation in less than one year by making the relevant commitment package binding.
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