Competition Newsletter / January - March 2024

BTS & Partners


BTS & Partners is a business enabler and policy influencer at the sectors where digital technologies and law are the key considerations for business success and transformation. BTS has been offering its legal services within this scope for more than 15 years and has led the adoption of information and communications technologies in Turkey.
The New Regulation on Active Cooperation in Detecting Cartels ("Regulation") came into effect upon its publication in the Official Gazette on December 16, 2023.
European Union Antitrust/Competition Law
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Regulatory Updates

  • The New Regulation on Active Cooperation in Detecting Cartels ("Regulation") came into effect upon its publication in the Official Gazette on December 16, 2023. The regulation replaced the previous one, which was published on February 15, 2009. The new Regulation introduced amendments to definitions and included new terms such as "applicant" and "cartel facilitator." It also addressed fines for cartel facilitators and specified conditions for reducing fines for applicants who provided information independently. Additionally, the regulation allowed seeking information from current and former managers and employees when necessary. Moreover, to benefit from a fine reduction, submitted information now must provide added value.

Miscellaneous Developments

  • The Competition Board concluded its preliminary investigation into allegations that Çiçeksepeti İnternet Hizmetleri A.Ş. ("Çiçeksepeti") had violated Article 6 of Law No. 4054 on the Protection of Competition by restricting its platform services to third parties and engaging in favouritism towards its own dealers. After deliberating on the information, documents, and findings gathered during the preliminary investigation at its meeting on January 11, 2024, the Competition Board deemed the evidence to be serious and sufficient. As a result, it decided to launch a full-fledged investigation against Çiçeksepeti (24-03/23-M).
  • The Turkic States Competition Council was established with the initiative to convene the competition authorities of the member states of the Organization of Turkic States ("OST"). The Council will be chaired by the Turkish Competition Authority for the first 3 years.
  • The 2023 Merger and Acquisition Overview Report, compiled by the Economic Analysis and Research Department of the Competition Authority, was released on January 5, 2024. This report provided insight into mergers and acquisitions in Türkiye in 2023, alongside comparative analyses from previous years, shedding light on anticipated economic activity and guiding potential investors. It noted a decrease in the number of transactions compared to previous years but an increase in transaction value. The average review period for transactions in 2023 was about 13 days.
  • The oral hearing, for the investigation launched against undertakings operating in the IT sector in Türkiye due to their alleged no-poaching practices in the labour market, was held on 13-14 February 2024. Following the oral hearing, the investigation was concluded for the relevant undertakings. Several companies were found to be in breach of Article 4 by engaging in anti-competitive agreements, rendering them ineligible for individual exemption under Article 5. However, other companies listed, such as Akgün Yazılım Pazarlama ve Ticaret Ltd. Şti., were not found to have violated Article 4, exempting them from administrative fines.

News From Around the World

  • The UK's Competition and Markets Authority ("CMA") started to conduct a thorough review of supermarkets' loyalty pricing, specifically examining the fairness of offering discounts exclusively to members. This investigation targets major players like Tesco and Sainsbury's with their Clubcard and Nectar programs, respectively. The CMA's initiative, announced in November, addresses concerns about potential market distortions and their impact on consumer choice. Discussions with supermarkets commenced to evaluate this, and the regulators plan to provide a comprehensive update on their progress in July, with the review expected to conclude by the end of the year.
  • The US Chamber of Commerce expressed concerns over South Korea's efforts to strengthen antitrust regulations targeting major tech companies, including US giants like Google, Meta, and Amazon. Charles Freeman, Senior Vice President for Asia at the Chamber, emphasizes the need for transparency in the legislative process and engagement with stakeholders. South Korea is considering a Platform Competition Promotion Act similar to the EU's Digital Markets Act, aiming to prevent unfair practices by dominant platform operators. Freeman argues that such bills are flawed and may violate trade commitments. In response, Korea's Fair-Trade Commission assures consideration of opinions from domestic and overseas stakeholders, including the US. Despite the assurance, major platform operators like Google, Meta, and Apple boycotted a recent closed-door meeting in protest.
  • The Netherlands' Authority for Consumers and Markets ("ACM") issued comprehensive guidelines to facilitate compliance with the European Union's Digital Services Act ("DSA"). As the national enforcer for both the DSA and the Digital Markets Act ("DMA"), the ACM aims to collaborate with online platforms and service providers in finalizing these guidelines. The guidelines, addressing online platforms and service providers, provide practical insight into ensuring compliance and seek feedback from industry stakeholders.
  • The European Commission initiated the enforcement of the Digital Services Act ("DSA") by sending information requests to 17 major tech companies designated as Very Large Online Platforms ("VLOP") and search engines. The companies, including Meta, Google, Apple, Microsoft, and others, were required to provide detailed information by February 9 on measures taken for researcher access to data crucial for EU and national elections. The move underscores the EU's commitment to ensuring compliance with digital regulations and maintaining transparency and accountability in the online space.
  • China issued new anti-monopoly guidelines to prevent industry associations from organizing firms into engaging in monopoly agreements, emphasizing the need for antitrust compliance. Simultaneously, Jiangsu Province released the first-ever "Guidelines for Handling Criminal Cases of Infringing upon Trade Secrets" to address the increasing incidents of trade secret infringement, particularly related to employee turnover.
  • The European Commission conducted unannounced inspections at companies in the tyre industry across several EU member states. The concern is potential violations of EU antitrust rules related to cartels and restrictive business practices in the sale of new replacement tires for vehicles. The Commission is investigating potential price coordination among the companies, including through public communications. The inspections, a preliminary step, do not presume guilt or indicate the investigation's outcome. There is no set timeframe for completing inquiries, and the duration depends on various factors.
  • The European Commission published a report on the enforcement of EU antitrust and merger rules in the pharmaceutical sector from 2018 to 2022. The report highlights the role of enforcement in ensuring fair prices, particularly during the COVID-19 pandemic. Antitrust enforcement resulted in 26 decisions against anti-competitive practices, imposing fines exceeding EUR 780 million. Investigations into over 70 cases revealed practices harming innovation and prices, including misuse of patents and pay-for-delay agreements. In merger control, the Commission reviewed over 30 mergers, raising concerns in five cases. The report emphasizes the importance of ongoing enforcement efforts in the pharmaceutical sector due to its economic significance and impact on public well-being.
  • The UK's Competition and Markets Authority ("CMA") initiated a review to understand the market for foundation models ("FMs") and assess potential opportunities, risks, and implications for competition and consumer protection. Following the publication of their report in September 2023, the CMA is engaging with stakeholders globally to gather feedback on proposed principles guiding FM development. An update, expected in April 2024, will include reflections on market developments, feedback on proposed principles, and insights into how FM developers access key resources. The CMA is also collaborating with the Digital Regulation Cooperation Forum on areas of crossover between competition, consumer, and data protection objectives.
  • The UK's Competition and Markets Authority ("CMA") Microeconomics Unit released a report examining trends in the UK labour market, emphasizing the impact of competition and employer market power. The study found that labour market concentration in the UK has remained consistent over 20 years, varying by region and industry. According to the report, concentrated labour markets were associated with lower wages, about 10% less on average, for affected workers. The report also highlighted the rising share of income workers receive compared to their input and identified the prevalence of non-compete clauses affecting around 30% of UK workers. The study noted the increased availability of hybrid working and its association with a rise in wages.
  • Randy Stutz was appointed as the new President of the American Antitrust Institute ("AAI"), a significant development for the organization. Stutz, an expert in antitrust law, previously served various roles within the AAI from 2009 to 2022. His return follows his advisory role at the Federal Trade Commission ("FTC") from 2023 to 2024.
  • The Court of Appeal confirmed that the Competition and Markets Authority ("CMA") is entitled to require foreign companies hand over documents during investigations on anti-competitive conduct. Despite legal challenges from BMW AG and VW AG, the CMA emerged victorious in the Court of Appeal after facing initial setbacks in the Competition Appeal Tribunal and High Court.
  • Sarah Cardell, the Chief Executive of the CMA, worried about big tech companies stifling innovation, pushed for new laws. Parliament is currently considering a bill that would grant the CMA more power. This bill specifically targets a small number of very dominant tech companies to ensure a fairer playing field and prevent them from hindering new ideas and business growth.
  • The Competition Appeal Tribunal ("CAT") confirmed that Motorola unfairly raised prices for the UK emergency services due to its virtually unconstrained monopoly over communication networks. The CAT reportedly rejected Motorola's appeal, which wrongfully said the CMA made mistakes in assessing market competition and Airwave Network profitability. Now, the CMA's order ensures fair pricing for the UK's emergency services, saving nearly GBP 200 million each year.
  • The CMA published its first response to a request for informal guidance received under the open-door policy set out in the Green Agreements Guidance. The guidance explains how competition law applies to environmental sustainability agreements between businesses operating at the same level of the supply chain, to help them act on climate change and environmental sustainability.
  • The CMA responded to its first informal guidance request under the Green Agreements Guidance. The Fairtrade Foundation's request, part of its Shared Impact initiative, addresses sustainability and resilience in food supply chains, building on existing efforts by UK grocery retailers in Fairtrade initiatives.
  • It was reported that to expedite the deployment of 5G networks EU regulators are contemplating easing restrictions on mobile telecom mergers and exploring collaboration with major tech companies for funding, according to a European Commission representative. The document, set to be presented by Vice-President Margrethe Vestager, addresses concerns from telecom giants like Deutsche Telekom and Orange, advocating for more lenient merger regulations. It highlights challenges posed by a fragmented market and suggests cross-border consolidation or cooperation for achieving the necessary scale for 5G investments. Additionally, the document proposes involving major tech companies, accounting for over half of internet data traffic, in funding network upgrades. The potential shift reflects a more collaborative approach involving both traditional telecom operators and major tech firms in EU telecom policy. However, any changes will require stakeholder feedback and careful consideration by EU regulators.

Formun Üstü

  • The US Justice Department launched several investigations into competition within the field of artificial intelligence (AI). The specific companies under investigation were not revealed, but the inquiries are extensive. It was stated that the ongoing scrutiny involves a dispute between the Justice Department and the Federal Trade Commission ("FTC") regarding Microsoft's significant investment in OpenAI, a major player in ChatGPT's development, triggering antitrust reviews in the UK and the EU.
  • European Union antitrust regulators initiated a substantial overhaul of the nearly three-decade-old Market Definition Notice, targeting a modernized assessment of market power, particularly in relation to Big Tech companies and their digital ecosystems. This update reflects the evolving landscape of technology markets and addresses concerns over major players' dominance and the influence of digital ecosystems. The revised rules will consider not only traditional metrics but also the impact of companies' digital ecosystems and the provision of free products or services. The emphasis on assessing imports' impact on EU businesses signals a broader approach to evaluating market competitiveness, demonstrating the EU's commitment to ensuring fair competition in the digital economy.
  • The European Union's Commissioner for Competition, Margrethe Vestager, stressed the need for enforcers to prioritize the impact of AI in merger control policy, warning major tech players, including Microsoft, Google, and Meta, of heightened scrutiny. Vestager emphasized the necessity of evaluating vertical integration and ecosystems in AI merger assessments, highlighting concerns about potential algorithmic collusion facilitated by AI. Her remarks indicate a forthcoming increase in the EU's engagement in scrutinizing tech mergers and AI partnerships, addressing the competition challenges posed by the dominance of tech giants in acquiring data, cloud space, and talent.

News From the Private Sector

  • EU antitrust regulators expressed worries about Microsoft's financial backing of OpenAI, the maker of ChatGPT, suggesting it might come under EU merger rules. This concern aligns with a caution issued by UK regulators. As known, Microsoft committed over USD 10 billion to OpenAI last year. However, despite the investment, Microsoft clarified it holds a non-voting position on OpenAI's board and has no ownership stake in the AI development company.
  • Amazon and robot vacuum manufacturer iRobot announced the cancellation of their proposed merger following resistance from European Union antitrust regulators. Amazon's ambitious USD 1.4 billion acquisition bid for iRobot encountered insurmountable challenges as EU antitrust regulators voiced concerns over potential market dominance issues. It has been reported that the European Commission was poised to block the deal, expressing worries that Amazon might stifle competition in iRobot's sector on its online marketplace, particularly in key European markets such as France, Germany, Italy, and Spain.
  • Microsoft's search engine Bing, web browser Edge, and advertising services seem to have dodged regulatory scrutiny under Europe's Digital Markets Act ("DMA"), according to sources cited by Bloomberg News. After an extensive five-month investigation, European watchdogs have concluded that these Microsoft products lack enough dominance to warrant regulation under the DMA. The investigation is scheduled to conclude in February, providing a welcome relief for the tech giant amid recent concerns raised by EU antitrust regulators.
  • In a joint effort to emphasize the importance of collaboration and fair competition, Schibsted, Allegro, and more than 20 small European companies, alongside nine industry groups, called on major tech corporations to involve them in the process of complying with the European Union's (EU) Digital Markets Act (DMA). These companies included Alphabet, Amazon, Apple, Meta, Microsoft, and ByteDance,
  • In a major legal win for Apple, a lawsuit by AliveCor, a Silicon Valley startup, accusing Apple of unlawfully monopolizing the U.S. market for heart rate monitoring apps designed for the Apple Watch was dismissed. AliveCor had alleged violations of antitrust laws, claiming Apple appropriated its heart-monitoring technology under false pretences and manipulated its heart rate algorithm to stifle competition. While AliveCor may consider an appeal, the dismissal marks a significant setback in challenging Apple's alleged monopolistic practices.
  • The Federal Trade Commission ("FTC") filed a complaint against Microsoft, alleging that the recent layoffs of 1,900 employees in the gaming sector following the Activision Blizzard acquisition contradict assurances given during the antitrust trial. The FTC questions Microsoft's commitment to maintaining independence post-merger, a key aspect emphasized during the trial. The heart of the dispute lies in Microsoft's explanation for the layoffs, which the FTC finds inconsistent with the promised autonomy for both entities after the merger. The complaint adds complexity to the ongoing legal battle, highlighting concerns over potential anticompetitive practices arising from the USD 68.7 billion deal.
  • A US federal judge scheduled a trial date for October 2026 in the ongoing legal dispute between the Federal Trade Commission ("FTC") and The lawsuit, filed by the FTC in September, accuses Amazon of operating an illegal monopoly by suppressing competition from sellers on its platform. Amazon denies the allegations, emphasizing standard retail practices and the lack of demonstrated harm to consumers. The FTC contends that Amazon's practices, including the use of the "Project Nessie" algorithm, have resulted in over USD 1 billion in increased prices for U.S. households. As both sides brace for a prolonged legal battle, the case is poised to impact e-commerce and competition regulation in the United States.
  • It was reported that Visa and Mastercard are seeking to dismiss antitrust claims filed by Intuit and Square, citing a USD 5.6 billion class-action settlement with merchants last year. The legal battle revolves around allegations of anticompetitive behaviour by fixing interchange rates. Visa and Mastercard argue that the settlement, which merchants chose not to opt out of, includes claims from their "agents," categorizing Intuit and Square as such. The credit card companies claim that enforcing the settlement terms should lead to the dismissal of claims brought by Intuit and Square. The complex case highlights the intricate dynamics in the payment processing ecosystem and the potential impact on competition within the credit card industry.
  • The European Commission received notifications from, ByteDance, and X, indicating that their services may meet the thresholds defined by the Digital Markets Act ("DMA"). If deemed as gatekeepers, subject to meeting specific criteria, these companies could be subject to new EU rules regulating large online platforms. The Commission has 45 working days to decide whether to designate these companies as gatekeepers, with a six-month compliance period if designated.
  • The European Union imposed a EUR 1.8 billion (USD 1.95 billion) fine on Apple, marking its first-ever antitrust penalty against The fine is a result of a five-year investigation triggered by a complaint from Spotify, accusing Apple of anti-competitive practices related to its App Store. The Commission alleges that Apple exploited its dominant position in the distribution of music streaming apps through the App Store. The company is accused of preventing rival services, such as Spotify, from informing iPhone users about cheaper subscription options outside of Apple's platform. Apple intends to appeal the decision, arguing a lack of credible evidence of consumer harm and emphasizing the flourishing European music streaming market. Apple also criticized the timing of the decision just before the implementation of the Digital Markets Act (DMA).

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