The decision of the Board in case Diye Danışmanlık (12.12.2014, 14-51/900-410) where the Board (i) did not find any anticompetitive practice that would trigger a full-fledged investigation (ii) while it considered it necessary to render an Article 9(3) decision ordering Yurddas and Partners ("YP") to cease its Media Barometer system; has been cancelled by two different judgments of two different chambers of the Turkish Administrative Courts. The case is interesting as it gave rise to the annulment of the Board's decision through two different judgments based on two different legal reasoning. The relevant judgments have been rendered in two separate annulment proceedings initiated by the investigated company (YP) and the complaining party (Association of TV Broadcasters).
For background information, the Association of TV Broadcasters filed a complaint with the Turkish Competition Authority on October 5, 2014 alleging that (i) YP had abused its dominant position in the market for media auditing services through its Media Barometer system, by way of facilitating the establishment of a cartel in the market for television channels' advertisement space and (ii) the undertakings receiving media auditing services from YP are engaging in a "buying cartel" concerning the prices for advertisement spaces.
In response to the complaint, the Board analyzed whether there was a buying cartel between the advertisers using YP's Media Barometer system. As a result of its analysis, the Board found that there was no need to take action with respect to this allegation as some of the pieces of evidence were related to 1998 and 2005 (the statute of limitation thus being expired) and there was no evidence supporting the relevant allegations for the boycott plan in 2011.
As for the allegation on YP's abuse of dominant position via the Media Barometer system, the Board found no evidence proving that the exchange of information through the Media Barometer price pool system constitutes a violation in and of itself. Even though there is no document proving a price fixing agreement among the Media Barometer users, the Board however considered that such a system could have certain effects on the advertisement unit time prices and payment terms. The Board concluded that (i) there was no document proving the existence of an anticompetitive agreement among the Media Barometer users and decided not to initiate a full-fledged investigation, (ii) however considering the competitive concerns that such a system could raise in the future, the Board found it necessary to submit an Article 9(3) letter, indicating that the relevant Media Barometer services should cease.
The Board's decision has been challenged twice: (i) before the 3rd Administrative Court of Ankara by YP and (ii) before the 16th Administrative Court of Ankara by the Association of TV Broadcasters (the complaining party before the Board).
The judgment of the 3rd Administrative Court of Ankara
The 3rd Administrative Court of Ankara first rendered a suspension of execution decision regarding the Board's 2014 decision in order to avoid the realization of any irreparable damage for YP (E.2015/101,13.07.2015) and then few months later annulled the Board's decision (E.2015/101,07.10.2015). The 3rd Administrative Court considered that the Board based its Article 9(3) decision on a speculative assessment as (i) the Board failed to consider the fact that the users of the Media Barometer were unable to access individual data on their competitors through such a system and (ii) it did not substantiate how such an information exchange could damage the competition in the market in the future. The 3rd Administrative Court observed that the Media Barometer system is only a pool which gathers information provided by the advertisers which allows the TV channels to determine their price policy individually by using the information contained in the relevant pool. As the Board failed to substantiate concretely how such a system could affect the competition in the market, the Court concluded that Article 4 of Law No. 4054 is not violated and the Board's decision should thus be annulled.
The judgment of the 16th Administrative Court of Ankara
The 16th Administrative Court rendered its own judgment on the same dispute in response to the annulment lawsuit initiated by the Association of TV Broadcasters seven months after the judgment of the 3rd Administrative Court (12.05.2016, 2016 /1534).
16th Administrative Court also decided that the Board's decision should be annulled on the ground that it is based on a contradictory reasoning. According to the 16th Administrative Court, if the Board were concerned about future anticompetitive effects of the Media Barometer system which justified the necessity to order YP to cease its relevant practices, the Board should have decided to initiate a full-fledged investigation in order to scrutinize if the relevant system is actually infringing Article 4 of Law No. 4054. However, according to the 16th Administrative Court, by deciding that there is no need to initiate a full-fledged investigation and that it was necessary to order an Article 9(3) decision on the undertaking, the Board rendered a contradictory decision which does not comply with the law, and which therefore should be annulled.
It follows from the foregoing that there are currently two different annulment judgments with respect to the Board's 2014 decision with two different reasoning. The appeal process against the judgments of the 3rd Administrative Court and 16th Administrative Court is still pending before the Council of State. Therefore, one could expect that the Turkish Competition Authority may bring the matter before the Council of State and render its final decision against YP after the finalisation of the appeal process.
This article was first published in Legal Insights Quarterly by ELIG, Attorneys-at-Law in December 2016. A link to the full Legal Insight Quarterly may be found here.
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