By the decision of the Turkish Competition Board no. 13-13/198-100 dated 08.03.2013, (the "TCB") it has been determined that 12 Banks (Akbank, Denizbank, Finans Bank, HSBC Bank, ING Bank, TEB, Garanti Bankasi, Halk Bankasi, Is Bankasi, Vakiflar Bankasi, Yapi ve Kredi Bankasi, Ziraat Bankasi), providing services in various sectors, were engaged in an agreement and/or concerted practice with respect to deposit, loan or credit card services by creating a cartel; and it has been decided that those Banks have infringed Article 4 of the Law No. 4054 on the Protection of Competition; and accordingly, high administrative fines on the relevant Banks have been imposed.1 Under the TCB's aforementioned decision, it was evaluated that the investigated acts of the Banks occurred within the scope of a reconciliation concerning deposit, loan and credit card services. The common plan of such reconciliation was to set pricing strategies together. Identification of the components of the mentioned reconciliation and implementation and follow-up of the reconciliation was achieved through a series of communication, exchange of information and understanding between the parties.
The Proceeding of the Lawsuit Filed for the Annulment of the TCB's Decision
Those various lawsuits initiated by the Banks, against whom infringement was determined, for the annulment of the Authority's said decision are still ongoing despite it has been 9 years since they were initiated. Regarding the relevant decision of the TCB, the court of first instance has passed two decisions of dismissal, and the Council of State has passed a decision of approval and two decisions of reversal. Following the decision of reversal of the Plenary Session of Administrative Law Chambers of the Council of State, the file has been examined by the court of first instance for the third time, and in this last step of the chain, the court has decided on the annulment of the relevant decision of the Authority. The lawsuit process relating to the annulment of the TCB's decision is as follows in brief:
i. On 21.11.2014, Ankara 2nd Administrative Court decided to dismiss the claim for annulment on the grounds that price information, which had not been put into practice and disclosed to the public yet, were shared between the competitors and that exchange of such competition-sensitive information between competitors cause undertakings to be distant from the uncertainty arising from competition in taking their commercial decisions and, in the same extent, lead to restriction of competition in the market.2
ii. On 16.12.2015, the 13th Chamber of the Council of State decided to approve the decision of the court of first instance on the grounds that the investigated Banks had shared competition-sensitive information within the scope of an agreement, that -according to certain documents- top-level executives of those Banks, which are competitors in the market, met at breakfasts and exchanged information in consequence of those meetings and discussions in a way to demonstrate the presence of an agreement.3
iii. Thereupon, an application for revision of the decision was filed against the approval decision of the Council of State, and on 21.05.2019 it was decided by the same Chamber to reverse the decision of the court of first instance on the grounds that some of the Banks were involved in the infringement only in terms of a single service and some Banks were not involved in the infringement at all in terms of certain services and therefore it was not possible to suggest the involvement of all of 12 Banks in the infringement in all sectors and that it was unlawful to keep all of those 12 Banks liable for all infringements committed among different Banks with respect to different sectors.4
In brief, the 13th Chamber stated that it could not be proven that those 12 Banks under investigation acted within a certain coordination under a single framework agreement or a common plan, and considered that, while a separate evaluation should have been made in terms of each service for which the relevant Banks were involved in the infringement, the decision in dispute which was made through an ongoing single infringement approach was found unlawful.
iv, The decision of reversal passed by the 13th Chamber of the Council of State upon the application for revision of the decision was evaluated once again by the court of first instance.
Disregarding the decision of reversal of the 13th Chamber of the Council of State, on 19.07.2019, the court decided to insist on the decision referred to in (i) above, considering that the investigated Banks were engaged in an agreement or concerted practice which gives or will give rise to an effect of prevention, disruption or restriction of competition in the market in terms of deposit, loan, credit card services and determination of interest rates and certain prices, that they exchanged information in the nature of commercial secrets, that they acted at their common will for taking market-oriented decisions in concert and consultation with each other and that, as proven by economic analyses and graphics, the matters agreed through such understanding were put into practice.5
v. Thereupon, the decision of insistence of the court of first instance was put through an appeal examination by the Plenary Session of Administrative Law Chambers of the Council of State, and on 31.05.2021, it was decided to reverse the decision of insistence of the court of first instance on the grounds that it could not be proven that those 12 Banks under investigation acted within a certain coordination under a single framework agreement or a common plan and that, while a separate evaluation should have been made in terms of each service for which the relevant Banks were involved in the infringement, the decision in dispute which was made through an ongoing single infringement approach was found unlawful.6
Last Ring of the Chain: the Annulment of the 12 Banks Decision Once Again
Upon the decision of reversal of the Plenary Session of Administrative Law Chambers of the Council of State, Ankara 2nd Administrative Court has decided to annul the TCB's decision, open to be appealed.7 The mentioned decision rules that the TCB's decision in dispute be annulled, and that the amount paid for the administrative fine plus the legal interest, which will accrue thereon as of the date of payment, be paid by the TCA to the plaintiffs. In the justification of the decision, it is briefly stated that it could not be proven that those 12 Banks under investigation acted within a certain coordination under a single framework agreement or a common plan and, while on the other hand, in the present dispute, a separate evaluation should have been made in terms of each service for which the relevant Banks were involved in the infringement, the passing of the TCB's decision through an ongoing single infringement approach was found not to be lawful.
This decision has been evaluated as not surprising since; as emphasized in the decision of reversal passed by the 13th Chamber of the Council of State in consequence of the examination conducted upon the application for revision of the decision and in the decision of reversal passed by the Plenary Session of Administrative Law Chambers of the Council of State, not all of 12 Banks were involved in infringements in all sectors. For instance, Türk Ekonomi Bankasi A.S. was involved only in a deposit-related infringement and HSBC Bank A.S. was involved only in an infringement related to credit card services, but no evidence has been found proving that public banks were involved in infringements related to loan services.
In this extent, in various stages of the judgement process, it has been emphasized that the TCB has directly made an omnibus evaluation of infringement without considering and distinguishing the breakdown of the infringement into deposit, loan, credit card and public deposit topics.
It may be suggested that, while separate evaluations should have been made in terms of each service for which the relevant Banks were involved in the infringement, the TCB's passing a decision through an ongoing single infringement approach is contrary to the law.
Footnotes
1. https://www.rekabet.gov.tr/Karar?kararId=30851aa5-2cf3-4c54-b284-e192ed6ed71b
2. https://www.rekabet.gov.tr/Safahat?safahatId=f0af50fa-0a67-47ec-a925-142cc36e6a72
3. https://www.rekabet.gov.tr/Safahat?safahatId=3a5d0c2b-fb29-4320-a26e-833b136cabff
4. https://www.rekabet.gov.tr/Safahat?safahatId=bc8b2515-35a7-4525-9d56-4e685dc8975d
5. https://www.rekabet.gov.tr/Safahat?safahatId=544f2efc-269d-4fd0-8838-17a20413a4a2
6. https://www.rekabet.gov.tr/Safahat?safahatId=8862a40d-8668-43cd-8885-a4a318611200
7. ING Bank - https://www.rekabet.gov.tr/Safahat?safahatId=76599c9f-c4c7-4cbf-b092-9471705dc3b7
Is Bankasi - https://www.rekabet.gov.tr/Safahat?safahatId=114a647c-2ad8-4953-b7e7-12f5cb3bbed8
Akbank - https://www.rekabet.gov.tr/Safahat?safahatId=ecbc3ef5-6a5b-477c-8046-62dcfc7ef456
Ziraat Bankasi - https://www.rekabet.gov.tr/Safahat?safahatId=cc346db6-ec01-446b-9f45-aef58c4b8bf6
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