INSIGHTS

In The Know.

April 2023 – In March 2023, the Turkish Competition Board (the “Board”) published no reasoned decisions and approved twelve merger and acquisition transactions.

The highlight of Turkish competition law in March was that the Board initiated a new sector inquiry regarding the possible competition effects on cities affected by the devastating earthquake that occurred in February.

The Board pays attention to the after-effects of the earthquake

On 17 March, the Competition Authority (“Authority”) announced that the Board had initiated a sector inquiry regarding the possible effects and outcomes of the earthquake that occurred in February 2023. The sector inquiry report will cover a total of eleven cities that are affected by the earthquake.

According to the announcement, the Board plans to establish a rapid and consistent communication channel with the institutions located in the mentioned cities, particularly with governmental institutions within the scope of the sector inquiry. Accordingly, within the framework of the inquiry, the Board mainly aims to: (i) resolve any possible competition law concerns with the coordinated actions of other governmental institutions; (ii) provide guidance regarding the cooperation between undertakings with respect to the rebuilding of the region; and (iii) prevent any action that may distort or limit the competitive environment of the relevant sectors due to the sudden and high demand in these sectors.

Elon Musk faced with fines for Twitter acquisition in Turkey

According to the announcement dated 6 March, the Board imposed a monetary fine on Elon Musk, as he did not obtain prior approval from the Board for the acquisition of Twitter. In this respect, the Board decided to impose a monetary fine at the rate of 0.1% of Elon Musk’s gross income in Turkey in 2022, while at the same time authorising the acquisition.

For more detailed information on the monetary fine imposed on Elon Musk and the acquisition of technology undertakings in Turkey, please click here.

Decisions on the cement and ready-mix concrete sector published en masse

On 17 March, the Authority published an announcement including the Board’s seven recent short-form decisions regarding undertakings operating in the cement and ready-mix concrete sectors. Accordingly, The Board decided to impose monetary fines on three undertakings due to the hindrance of on-site inspections. The Board also launched two separate investigations involving a total of 22 undertakings.

The Authority publishes its final sector inquiry report on the FMCG industry

On 30 March, the Authority published the final version of its sector inquiry report on the fast-moving consumer goods (FMCG) industry. The Authority’s final report covers a broader spectrum of issues including the general operation and structure of the industry, the possible effects of the undertakings in the retail market, and digitalisation in the FMCG industry.

We set out a brief summary of the suggestions and assessments of the report below:

• The Authority proposes a number of prohibitions and limitations to be included in the draft amendment to the Law on Regulation of Retail Trade; such as (i) various prohibitions in many areas, e.g., unfair payment terms and cost structuring, especially regarding perishable items; unilateral contract revisions; or misuse of trade secrets; and (ii) penalties to be based on the turnovers of relevant undertakings for unfair commercial practices.
• The Authority has also assessed that a “diameter” limit can be imposed in the establishing of a market chain in a certain area, such as by not opening/acquiring more than one supermarket chain within a certain diameter.
• Regarding the block exemption of vertical agreements, the Authority states in its report that due to the bargaining power of retailers, a threshold based on the buyers’ bargaining powers may be included in the legislation.
• The report also emphasises that the effects of digitalisation should be taken into account in defining the relevant product and geographical markets in the Board’s decisions.
• The Authority considers that a ban might be suggested for the manufacturing of goods with retailer-specific packaging, as these exclusive agreements may harm competition and confuse customers.
• The Authority indicates that private label products are a factor that increases the buying power of retailers, which might be detrimental to the competitive environment of the industry.

The Board scrutinises the exchange of information in the car rental sector

In one of its latest decisions, the Board provided another analysis on the anti-competitive information exchange among undertakings in Turkey’s car rental sector. As per its decision regarding the exchanged information by several undertakings operating in the car rental sector, the Board scrutinised the competitively sensitive information that is exchanged indirectly.

The main aspects of the Board’s findings regarding the preliminary investigation into the car rental sector are as follows:

• The structure of the car rental sector enables undertakings to monitor their competitors’ prices via market research studies or from other third parties within the sector. Therefore, these undertakings often do not need any additional effort to obtain such competitively sensitive information, such as prices applied by their competitors.
• Also, the Board found that customers share the price offers that they obtained from one undertaking with another as a bargaining tool. Therefore, this practice also facilitates the access of undertakings to each other's information regarding their prices.
• Additionally, the Board resolved that there is a vertical relation between the services of short-term car rental and long-term car rental.

In light of the above findings, the assessments of the Board are as follows:

• In order for the exchange of competitively sensitive information to constitute an infringement, the relevant practices must lead to parallel pricing between undertakings and/or an increase in prices.
• On the other hand, the Board did not obtain any evidence pointing to such conclusions. On the contrary, it was concluded that the price offers submitted by customers increased competition in the market.
• Furthermore, the Board resolved that the information (e.g., information regarding short-term car rental service prices and stocks) shared between the undertakings providing long-term and short-term car rental services are exchanged within the framework of a vertical relationship. In this respect, it was concluded that the information shared as a requirement of the vertical relationship did not harm competition.
• In addition, the Board concluded that the car rental sector has a structure that makes the coordination between the undertakings difficult, and that there are many factors affecting the prices of the players in the market, thus making it difficult to monitor market prices.

Consequently, the Board decided not to impose a monetary fine against any of the undertakings scrutinised within the preliminary investigation. Please click here for an analysis of the Board’s recent decision on the car rental undertakings together with the Board’s previous approach regarding information exchange.

For more information please contact Bulut Girgin, Counsel, Head of Competition & Compliance, at bgirgin@gentemizerozer.com, and Associates Ceren Ceyhan, at cceyhan@gentemizerozer.com, or Merve Zeynep Aydaş, at maydas@gentemizerozer.com.