Introduction
On 10 January 2024, the Turkish Competition Authority ("TCA") announced that Meta failed to fulfil the compliance measures attached to its previous abuse of dominance decision.1 As a result, the Turkish Competition Board ("Board") decided to impose a daily administrative monetary fine on Meta amounting to approximately to EUR 146,000.2 The fine applies retroactively from 12 December 2023 and will be assessed daily until Meta provides a final compliance remedy that the TCA will deem sufficient to restore effective competition in the market.
In this article we summarise why Meta was fined and the path that led to the imposition of daily administrative monetary fines.
Why was Meta fined in the first place?
On 11 January 2021, the Board initiated an investigation into Meta following the company's announcement that its WhatsApp privacy policy would be updated in Turkey. As part of its investigation, the Board also imposed interim measures on Meta, stopping its privacy policy from entering into effect.3 Meta's appeals against the interim measures were denied by the administrative courts, rendering the interim measures effective for the duration of the investigation.
As a result of the investigation phase, the Board found Meta to be dominant in the markets for personal social networking services, consumer communication services, and online display advertising. Subsequent to establishing Meta's dominance, the Board found that Meta abused its dominant position in the markets for personal social networking services and online display advertising markets by creating entry barriers to these markets, which it did by combining data collected from its core services (i.e., Facebook, Instagram and WhatsApp). Put simply, Meta's data combination practices were found to be abusive, as they hinder its competitors from entering and operating in these markets. Consequently, an administrative monetary fine of approximately EUR 10,548,134 was imposed on Meta4 ("Fining Decision"). No abuse was found in the consumer communication services market.
Two of the Board members went as far as to argue that Meta's competitors will not be able to achieve a data set as efficient as Meta's, and therefore the only way to restore effective competition is to split Meta.
Compliance measure and Meta's failure to comply
With its Fining Decision the Board stated that Meta should submit the necessary remedies within one month as of its receipt of the reasoned decision and to fulfil them within six months as of its receipt of the reasoned decision to restore effective competition in the market. This deadline was later extended by two months. The Board, however, did not specify what these measures should be and left it to Meta to come up with compliance remedies to restore effective competition in the market.
What exactly transpired between Meta and the Board is unclear, as their dialogue cannot be discerned from the announcement. However, it should be noted that the administrative fine was imposed after the revised compliance package was submitted, meaning that Meta was given an opportunity to revise its compliance measures. Ultimately, the Board found both the initial and revised compliance package insufficient to restore effective competition and opted to impose daily administrative fines on Meta.
Conclusion
Daily administrative fines for non-compliance with remedies or compliance measures is not new for Turkish competition law. Quite recently, French ophthalmic optics-maker Essilor faced daily administrative fines totalling approximately EUR 16.9 million, which corresponds to a remarkable 1,781 days (more than four years) of daily monetary fines.5 In 2019, Google also faced daily administrative fines in Turkey for non-compliance.6 It may be that imposing daily administrative monetary fines will emerge as a new trend at the TCA.
As for Meta, it will continue facing daily administrative fines until it submits a compliance remedy that satisfies the Board.
This may also not be the last of Meta's headaches related to competition laws in Turkey. In December, the Board announced that it had initiated a full-fledged investigation into Meta to determine whether it abused its dominant position by tying its Instagram platform to its new application, Threads. The Board's back-to-back announcements regarding Meta suggest that digital platforms will likely continue to be a hot topic for the Turkish competition authorities, as they are all over the world.
Footnotes
1. English version of the announcement can be reached via this link: https://www.rekabet.gov.tr/en/Guncel/the-announcement-of-the-board-decision-a-3e42b75bc1afee118ecc00505685da39
2. In converting the TL amount the following conversion rate is applied: 1 EUR = 32.87 TL.
3. English version of the interim measures decisions of the Board can be reached via this link: https://www.rekabet.gov.tr/Dosya/facebook-21-02-25-10-ingilizce.pdf.
4. In converting the TL amount the following conversion rate is applied: 1 EUR = 32.87 TL.
5. The Competition Board's decision dated 17.08.2023 and numbered 23-39/749-259 (reasoned decision is not published yet). The short-form decision can be accessed via the following link, available only in Turkish: https://www.rekabet.gov.tr/Dosya/essilorluxottica-nihai.pdf.
6. The exact amount of administrative monetary fines was not disclosed to the public. Board's decision dated 07.11.2019 and numbered 19-38/577-245.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
