The Turkish Competition Authority’s Aydın Ready-Mixed Concrete Decision

A. Introduction

The Turkish Competition Authority (“TCA”) recently published its reasoned decision concerning a wide-ranging investigation into undertakings active in the production and sale of ready-mixed concrete in Aydın. The investigation concerned allegations of price fixing, customer and territorial allocation and resale price maintenance under Article 4 of Law No. 4054, which is broadly similar to Article 101 TFEU.

The investigation is notable for its scale. A significant number of ready-mixed concrete producers and distributors settled during the proceedings, while the TCA continued its investigation against the remaining undertakings. In its final decision, the TCA found Batıbeton, Öztürk and Şölen liable for price fixing and/or customer or territorial allocation. More interestingly, the TCA also imposed a fine on Çimentaş, a cement producer that was not itself a competitor in the relevant ready-mixed concrete market, on the ground that it facilitated the implementation of a customer-allocation arrangement between ready-mixed concrete producers in Didim. By contrast, the TCA found no infringement by six other undertakings remaining in the investigation.
In our view, the decision is particularly noteworthy for two reasons. First, it provides an important example of the TCA imposing liability on an undertaking operating at a different level of the supply chain for facilitating a cartel between other undertakings. Second, although the investigation contained a substantial number of communications initially raising resale price maintenance (“RPM”) concerns, the TCA ultimately rejected these allegations after examining the commercial context of the communications and comparing the prices contained in the evidence with actual transaction prices.

B. Background of the Case

The investigation originated from a complaint submitted through the Presidential Communication Centre to the Aydın Provincial Directorate of the Ministry of Trade in October 2022. The complaint alleged, in particular, that ready-mixed concrete prices in Nazilli were approximately twice as high as those in central Aydın and that producers operating in Nazilli prevented producers located outside the district from selling ready-mixed concrete there. The complaint was subsequently transmitted to the TCA.

Following preliminary inquiries and several rounds of dawn raids, the TCA opened a full investigation in October 2023 against numerous undertakings active in the production and/or distribution of ready-mixed concrete in Aydın. The investigation was subsequently expanded to examine whether cement producers had participated in or facilitated price-fixing and customer-allocation arrangements involving ready-mixed concrete producers.

A substantial number of investigated undertakings subsequently opted for settlement. Among others, OYAK, Mendeş, Canatanlar, Asbeton, Boylular Gıda, Türen Kireç, Bilkent and Aydın Seramik settled allegations concerning price fixing and/or customer allocation. Değişim, Kösem and Ufuk similarly settled allegations concerning price fixing and customer allocation in Didim. The investigation therefore continued only in respect of the non-settling parties.

C. Relevant Market Assessment

The TCA examined the ready-mixed concrete market by taking into account one of the defining characteristics of the product: ready-mixed concrete must generally be delivered within a relatively limited distance from the production facility.

Consistent with its previous decisional practice, the TCA relied on an approximately 50–55 km radius when assessing the geographic competitive conditions. It examined the location of production facilities, actual sales patterns and the transport characteristics of ready-mixed concrete. The TCA observed that sales were not necessarily limited to 25 km and could extend up to approximately 50–55 km.

On this basis, rather than treating the entire province of Aydın as one homogeneous geographic market, the TCA identified three overlapping geographic areas: Aydın Merkez–Nazilli, Aydın Merkez–Söke and Söke–Didim.

This geographic assessment also became relevant to the substantive analysis. In particular, whether the undertakings referred to in individual pieces of evidence were actual or potential competitors depended on the location of their plants and their ability to supply customers within the relevant radius.

D. TCA's substantive assessment

D.1. Price fixing and customer allocation

A central part of the case concerned communications suggesting that ready-mixed concrete producers had periodically met and coordinated their commercial conduct.

One particularly interesting feature of the evidence was the recurring use of expressions such as “table” and “tea". Rather than assessing these expressions in isolation, the TCA interpreted them in light of the broader body of evidence. According to the TCA, numerous communications showed that undertakings referred to meetings as “table” or “tea” meetings and used those meetings to discuss which undertaking would supply particular customers or regions. Accordingly, the TCA considered references to “breaking the table” or preparing for the “table” as potentially referring to an existing customer-allocation or price-fixing arrangement.

This approach reflects the TCA's broader position on evidence in cartel cases. The TCA emphasized that evidence should not be assessed individually and in isolation. Once the existence of a common arrangement is demonstrated, every individual document need not establish all elements of the infringement. Internal correspondence and documents obtained from one participant may therefore be used as evidence against other participants where they form part of a coherent evidentiary picture.

The TCA also reiterated that the absence of incriminating evidence obtained directly from each undertaking does not necessarily prevent a finding of infringement. In its view, requiring incriminating evidence to be found at every participant's premises would effectively reward undertakings that were more successful in eliminating evidence.

Applying this framework, the TCA concluded that Batıbeton, Öztürk and Şölen had participated in price-fixing and/or customer or territorial allocation arrangements. Batıbeton was fined TRY 37,851,666.03, Öztürk TRY 28,308.08 and Şölen TRY 1,216,947.91.

At the same time, the decision demonstrates that the existence of an overall cartel environment did not automatically result in liability for every undertaking mentioned in the communications. The TCA rejected infringement allegations against Batıçim, Betontaş, Çimbeton, Kabasakal, Serttaş and Türen Yapı, concluding that the evidence was insufficient to establish their participation in an infringement. In each case, the TCA applied undertaking-specific analysis rather than treating proximity to the cartel as a sufficient basis for liability. For Batıçim, the sole piece of evidence was a third-party internal communication in which Batıçim's name appeared, but no corroborating document was found to confirm that Batıçim had actually attended the relevant meeting or communicated with the cartel participants. For Betontaş, the sales volume figure attributed to it in the same communication did not match the undertaking's actual production records, undermining the reliability of the evidence. For Çimbeton, the TCA found that the communications in which its name appeared were consistent with competitive pricing behaviour and were not supported by any direct communication evidence linking it to the arrangement. For Kabasakal, the relevant communication reflected a legitimate vertical interaction between a supplier and its reseller concerning delivery risk, rather than a horizontal market-sharing agreement. The decision therefore illustrates that, even in a case involving a large number of participants and a substantial body of evidence, the TCA will not infer participation from mere association or from the fact that an undertaking's name appears in a third party's internal correspondence.

D.2. Cartel facilitator liability: Çimentaş

Perhaps the most significant aspect of the decision concerns Çimentaş. Unlike the ready-mixed concrete producers investigated for horizontal coordination, Çimentaş operates in the upstream cement market. Nevertheless, the TCA concluded that Çimentaş had facilitated the implementation of a customer-allocation arrangement between ready-mixed concrete producers operating in Didim.

The TCA's legal reasoning is particularly noteworthy. It emphasized that an undertaking does not necessarily have to operate in the market affected by a cartel in order to incur liability for contributing to the infringement. Referring to Article 14 of the Turkish Misdemeanours Law and the definition of a “cartel facilitator” under the Turkish Leniency Regulation, the TCA reasoned that an undertaking which intentionally contributes to the establishment, implementation, continuation or monitoring of a cartel may itself be held liable.

The TCA also relied on its previous decisional practice concerning undertakings facilitating infringements in markets in which they did not directly compete.. At the EU level, the TCA drew an analogy with AC-Treuhand, where an undertaking that did not operate in the cartelised product market was nevertheless held liable because it knowingly contributed to the operation of the cartel by organising meetings, collecting and distributing information and assisting cartel participants in resolving disagreements.

Importantly, the TCA also addressed the subjective element of facilitator liability. Since Article 14 of the Misdemeanours Law requires intentional participation, the TCA stated that it is necessary to determine whether the alleged facilitator acted knowingly and intentionally. Mere commercial interaction with cartel participants should not, in itself, be sufficient. The undertaking must knowingly contribute to the unlawful arrangement.

Against this legal framework, the TCA found Çimentaş liable for facilitating the customer-allocation arrangement in Didim and imposed a fine of TRY 37,370,945.14.

This aspect of the decision is particularly significant because it illustrates that cartel exposure under Turkish competition law may extend beyond horizontal competitors. Suppliers, consultants, distributors or other third parties that knowingly play an active role in implementing or maintaining an arrangement between competitors may potentially face direct liability.

E. The TCA's assessment of the RPM allegations

Another notable aspect of the decision concerns the extensive body of communications between ready-mixed concrete suppliers and their resellers that initially raised RPM concerns.

The investigation included numerous communications between Çimbeton and its reseller Şölen, as well as between Batıbeton and its reseller Asbeton. In several messages, Şölen asked Çimbeton what price should be quoted to a particular customer, while Çimbeton responded with price information. At first sight, as the TCA itself acknowledged, some of these communications could create the impression that Çimbeton was determining Şölen's resale prices.

However, the TCA did not stop at the wording of the communications.

E.1. The Çimbeton–Şölen evidence

The evidence concerning Çimbeton and Şölen consisted of two categories. The first comprised e-mails sent by Çimbeton to Şölen containing price lists or price-change notifications for ongoing construction sites. These documents listed individual construction sites by name, together with the applicable concrete grade, the committed volume and the price. The second category comprised communications in which Şölen asked Çimbeton for a price for a specific customer or project, providing the location and volume of the order, and Çimbeton responded with a figure. In one instance, Şölen forwarded a customer's tender request directly to Çimbeton, and in another, Şölen asked Çimbeton to approve a discount requested by a customer.

The TCA noted that the commercial relationship between Çimbeton and Şölen was governed by an "Authorised Dealer Information Form", which was completed for each individual construction site and set out the delivery price, payment terms, concrete grade and the start and end dates of the project. The TCA observed that this form constituted the individual sales contract between Çimbeton and Şölen for each project, and that the prices recorded in it were Çimbeton's own delivery prices to Şölen rather than Şölen's resale prices to end customers.

The TCA also noted the commercial characteristics of ready-mixed concrete. Because the product must be delivered directly to the construction site by the producer, and because the cost of delivery varies significantly depending on the distance from the plant, the volume ordered, the project duration and payment conditions, it was commercially plausible for Şölen to ask its supplier for pricing information after providing the location and quantity of a customer's order. The TCA considered that this reflected the operational reality of the ready-mixed concrete sector rather than an attempt to fix Şölen's downstream prices.

Crucially, the TCA tested this interpretation against actual transaction data. It requested invoices relating to specific customers mentioned in the communications and compared the prices communicated by Çimbeton with the prices ultimately charged by Şölen to those customers. The results showed that Şölen's actual resale prices were consistently higher than the figures communicated by Çimbeton, confirming that Şölen added its own margin and independently determined its resale price. For example, in relation to one of the price-change notifications, the TCA found that the prices listed in Çimbeton's communication were lower than the prices Şölen actually charged to the same customers. Similarly, in relation to the discount-approval communication, the price recorded in the Authorised Dealer Information Form was TRY 143, while Şölen's actual invoice to the end customer was TRY 162.

The TCA further found no evidence that Çimbeton monitored whether Şölen followed the communicated prices, criticised Şölen for offering lower prices, required prices to be increased or otherwise applied pressure or incentives to ensure compliance. In the absence of such monitoring or coercive mechanisms, the TCA concluded that the prices communicated by Çimbeton were either its own wholesale delivery prices to Şölen or, at most, non-binding recommended prices. Since 2002/2 Block Exemption Communiqué permits a supplier to recommend or set maximum resale prices, provided that such prices do not become fixed or minimum prices through the supplier's pressure or incentives, the TCA concluded that the communications did not establish an RPM infringement.

E.2. The Batıbeton–Asbeton evidence

A similar analysis was applied to the communications between Batıbeton and Asbeton. The investigation included eighteen pieces of evidence in which Asbeton asked Batıbeton what price to quote to a particular customer, providing the location, concrete grade and volume of the order, and Batıbeton responded with a price figure.

The TCA noted that Asbeton had progressively reduced its own production activities during the relevant period and had increasingly operated as a reseller, purchasing concrete from Batıbeton and other suppliers and reselling it to end customers. The TCA found that the commercial relationship between Batıbeton and Asbeton was a vertical one, with Batıbeton acting as supplier and Asbeton as reseller.

The TCA observed that, given the nature of ready-mixed concrete, it was commercially necessary for a reseller such as Asbeton to ask its supplier for a price before quoting to a customer, since the supplier would bear the transportation costs and would need to assess the feasibility of delivery to the specific location. The TCA considered that this explained why the communications contained references to the location, volume and timing of the customer's order.

As with the Çimbeton–Şölen evidence, the TCA examined whether Batıbeton had applied any monitoring or coercive mechanism to ensure that Asbeton followed the communicated prices. It found no such mechanism in any of the eighteen pieces of evidence. The TCA also noted that the communications themselves contained both the wholesale purchase price that Batıbeton would charge Asbeton and the suggested resale price that Asbeton might charge the end customer, which further supported the characterisation of the communicated prices as recommendations rather than binding instructions.

The TCA therefore concluded that the RPM allegations against Batıbeton were not established and that the relevant communications reflected the ordinary commercial interaction between a supplier and its reseller in the ready-mixed concrete sector.

F. Cartel evidence versus RPM evidence: two different approaches?

We consider that the decision provides an interesting contrast in the TCA's evidentiary approach.

For the horizontal cartel allegations, the TCA placed significant emphasis on the holistic assessment of evidence. Individual internal communications could be read together with other documents and with the overall context of the investigation. An undertaking did not necessarily have to appear directly in every incriminating communication, and documents found at one undertaking could constitute evidence against another.

For the RPM allegations, however, the TCA adopted a more transaction-specific analysis. Rather than treating apparently problematic expressions as sufficient, it examined the economic and contractual context, the supplier-reseller relationship, transportation costs, the absence of monitoring or coercion and, ultimately, the invoices showing the prices actually charged to customers. The TCA's comparison of the prices mentioned in the communications with actual invoice prices proved decisive: where Şölen's actual resale prices were consistently higher than the figures communicated by Çimbeton, this demonstrated that Şölen had independently determined its own margin and was not bound by the communicated prices.

In our view, this is an important part of the decision. TCA frequently encounter communications in which suppliers and distributors discuss customer-specific prices, discounts or margins. The Aydın decision illustrates that the terminology used in such communications cannot necessarily be assessed independently from the underlying distribution relationship. A statement that appears, at first sight, to concern the reseller's downstream price may in fact concern the supplier's wholesale price, transportation costs or a non-binding recommendation.

The TCA's decision is particularly noteworthy in this respect because the Authority verified the interpretation of the communications against actual invoices. In other words, the distinction between an unlawful fixed resale price and a lawful recommended price was not based exclusively on the parties' explanations but was tested against their actual commercial conduct.

G. The Fines and the New Regulation on Fines

The decision is also among the first cases in which the TCA applied the new Regulation on Fines, which entered into force on 27 December 2024, although the conduct under investigation pre-dated the new framework. The new Regulation introduced significant changes to the fining methodology, most notably by abandoning the previous distinction between "cartels" and "non-cartel (other) infringements" as the basis for determining the starting fine rate, and by removing the fixed lower and upper bounds that had previously applied to each category. Under the new framework, the starting fine rate is determined by reference to the gravity of the harm caused or likely to be caused by the infringement and the seriousness of the infringement, without a prescribed minimum or maximum rate for each infringement type.

The new Regulation also modified the duration multipliers applied to the starting fine rate. Under the previous framework, the duration adjustment was calculated on a per-year basis. Under the new framework, the starting fine rate is increased by one-fifth for infringements lasting between one and two years, by two-fifths for infringements lasting between two and three years, by three-fifths for infringements lasting between three and four years, by four-fifths for infringements lasting between four and five years, and by one full multiple for infringements lasting more than five years.

The TCA applied the principle of the more favourable law throughout the fining exercise. Where the new Regulation produced a lower fine than the previous framework would have done, the new Regulation was applied. Where the previous framework would have produced a lower fine, the previous framework was applied. The TCA carried out this comparison individually for each undertaking.

The recidivism issue arose specifically in relation to Çimentaş. The TCA noted that Çimentaş had previously been found to have infringed Article 4 of Law No. 4054 by a decision of 16 January 2016. Since the conduct at issue in the present case occurred within eight years of that earlier decision, the conditions for recidivism under Article 6 of the Regulation on Fines were satisfied. The TCA accordingly increased the base fine rate for Çimentaş by up to one-half on account of recidivism.

Çimentaş contested the application of the recidivism multiplier on several grounds. It argued, first, that the earlier decision concerned the grey cement market, whereas the present case concerned the ready-mixed concrete market, and that the two infringements were therefore insufficiently similar to justify a recidivism finding. It argued, second, that the concept of a "cartel facilitator" had only been formally introduced into Turkish competition law by the Leniency Regulation of December 2023, and that applying recidivism on the basis of an earlier decision that pre-dated that concept was inconsistent with the principle of non-retroactivity of penalties. It argued, third, that the earlier decision had been issued against Çimentaş in its capacity as a cement producer, whereas the present case concerned conduct in a different market, and that the personality of penalties principle precluded the use of the earlier decision as a basis for recidivism.

The TCA rejected all three arguments. On the first argument, the TCA noted that the Regulation on Fines does not require earlier and later infringements to have occurred in the same market or to be of the same type. Recidivism is a characteristic of the undertaking, not of the specific infringement. On the second argument, the TCA observed that the concept of participation in a cartel through facilitation had been recognised in Turkish competition law well before the formal introduction of the term "cartel facilitator" in the Leniency Regulation, as evidenced by the TCA's earlier decisions. The non-retroactivity principle was therefore not engaged. On the third argument, the TCA noted that the earlier decision had been issued against Çimentaş itself, not against a different legal entity, and that the personality of penalties principle was therefore satisfied.

By contrast, the TCA declined to apply the recidivism multiplier to Batıbeton, even though Batıbeton's parent company Batıçim had been the subject of the same 2016 decision. The TCA reasoned that Batıbeton and Batıçim are separate legal entities and that the earlier decision had been issued against Batıçim, not against Batıbeton. Consistent with its established practice of not automatically attributing a parent company's prior infringement to a subsidiary for recidivism purposes, the TCA concluded that the 2016 decision could not serve as a basis for a recidivism finding against Batıbeton.

H. Why This Decision Matters & Conclusion

In our view, this decision’s importance extends beyond another finding of price fixing and customer allocation in the ready-mixed concrete sector. It raises several points of broader significance for competition law practitioners.

The first important takeaway concerns cartel facilitators. By fining Çimentaş for facilitating a customer-allocation arrangement between undertakings active in another market, the TCA confirms that Article 4 exposure is not necessarily confined to direct competitors participating in the cartelised market. The decision, read together with the TCA's earlier Duru Bilişim and Taksimetre precedents and the EU's AC-Treuhand case law, indicates that an undertaking knowingly assisting the implementation or continuation of a cartel may itself face liability even where it operates at a different level of the supply chain.

At the same time, the requirement of intentional participation is important. Facilitator liability should not mean that every supplier, consultant or intermediary having knowledge of its customers' commercial activities automatically becomes a party to their infringement. The distinction lies in whether the third party knowingly contributes to the establishment, implementation or maintenance of the anticompetitive arrangement.

The second takeaway concerns the TCA's approach to RPM evidence. The decision demonstrates that communications referring to customer-specific prices should not automatically be equated with resale price maintenance. Particularly in industries where transportation, location, order volume and project-specific characteristics materially affect the supplier's own price, communications between suppliers and resellers may have legitimate explanations. The TCA's decision to compare the communications with actual invoices is therefore particularly instructive.

Indeed, the contrast between the horizontal and vertical parts of the case may be the decision's most useful practical lesson. For cartel allegations, fragmented communications may acquire evidentiary significance when read as part of a wider pattern. For RPM allegations, however, commercial context and actual transaction data may demonstrate that apparently problematic price communications did not restrict the reseller's pricing freedom.

Finally, the decision shows the increasingly complex nature of Turkish cartel investigations. A single investigation may involve horizontal price fixing, customer allocation, vertical restraints, intermediaries operating at different levels of the supply chain, numerous settlement decisions and a final adversarial decision for the remaining parties. The Aydın case is therefore a useful illustration of how the TCA approaches the boundaries between cartel participation, cartel facilitation and legitimate vertical commercial interaction.

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