2021 Turkish Competition Law Bulletin

Question 1

Statutory Amendments Incompliance With The Europeanunion Competition Law

Answer

Communiqué On The Commitments To Be Offered Inpreliminary Inquiries And Investigations Conductedby The Turkish Competition Authority (“authority”)has Been Published.

With the amendment on 24 June 2020 in Law No. 4054 on the Protection of Competition (Law No. 4054), it was stipulated that the procedures and principles regarding the commitment process would be regulated by a communiqué to be issued by the Board. In this regard, the "Communiqué on the Commitments to be Offered in Preliminary Inquiries and Investigations Concerning Agreements, Concerted Practices and Decisions Restricting Competition, and Abuse of Dominant Position" ("Communiqué on Commitment") was published in the Official Gazette dated 16 March 2021 and numbered 31425. The Communiqué on Commitment, which has also applies to the ongoing inquiries as preliminary inquiries and investigations, as of the date of its entry into force, has substantially eliminated the legal gaps and uncertainties experienced since the amendment in 2020, by drawing a legal framework. In addition, it is obvious that the first steps of compliance with the European Union Competition Law in 2021 have been taken with the inclusion of the commitment procedure within the scope of Turkish Competition Law.

Communiqué on Commitment regulates (i) submitting commitments to eliminate the competition issues, (ii) rendering the submitted commitments binding for the undertakings concerned by the Board, (iii) monitoring the commitments by the Authority and regulating procedures and principles accordingly.

Pursuant to the Communiqué on Commitment, undertakings or associations of undertakings under inquiry, are entitled to submit commitments to the Authority and to request the ongoing inquiry to be terminated through the commitments. It is not possible for every pre-inquiries and investigations to benefit from the commitment procedure, since inquires conducted against acts defined as clear and gross violation in the Communiqué on Commitment cannot benefit from the practice of commitment.

For more detailed information on the termination of preliminary inquiries and investigations by means of commitment, you can access the full text of the Communiqué on Commitment here.

You can find our previous article on the subject here.

The “De Minimis” Rule of the European Commission has also entered into force in Turkish Competition Law.

The “de minimis” rule, which has been applied by the European Commission for many years, is based on the idea that the agreements, concerted practices, decisions and actions of the association of undertakings that do not exceed certain market shares have a negligible impact on establishing an effective competition. Accordingly, it is accepted that the transactions not exceeding certain market share thresholds are not eligible to restrict competition and therefore cannot be the subject to any preliminary inquiry or investigation.

“Communiqué on Agreements, Concerted Practices and Decisions and Practices of Associations of Undertakings that do not Significantly Restrict Competition” (“Communiqué on De Minimis”) numbered 2021/3, which was largely prepared on the basis of the European Union legislation and adopted by the Board on February 18, 2021, entered into force by being published in the Official Gazette dated 16 March 2021 and numbered 31425. An important step has been taken towards the compliance of Turkish Competition Law to the EU law by constitutionalizing “de minimis rule” which also applies to the ongoing preliminary inquiries and investigations on the date the Communiqué on De Minimis entered into force, which has been applied in the practice of Turkish Competition Law occasionally even before its legal limits had been framed.

Communiqué on De Minimis is aimed to use public resources more efficiently to investigate more severe violations, rather than violations that do not significantly restrict the effective competition.

You can find the full text of the Communiqué on De Minimis here.

You can find our previous article on the subject here.a>

The Block Exemption Market Share Thresholds Regarding Vertical Agreements Have Been Lowered.

Communiqué Amending Block Exemption Communiqué on Vertical Agreements numbered 2002/2 (Communiqué No:2021/4) (“Communiqué on Amendment”) has been published in the Official Gazette dated 5 November 2021 and numbered 31650 and has entered into force on the date of its publication.

Pursuant to the Communiqué on Amendment; the market share threshold of 40%, which accepted as a prerequisite for undertakings to benefit the from block exemption for the application of Article 4 of the Law no. 4054, for their activities in the vertical markets have been lowered to 30%. Through the Communiqué on Amendment, the exemption thresholds set forth under the Turkish Competition Law was equalized with the thresholds determined under the EU Law.

Pursuant to the Communiqué on Amendment amending the Article 2 of the Block Exemption Communiqué on Vertical Agreements numbered 2002/2:

The market share applied for the undertakings operating in the upstream market as suppliers to benefit from the exemption, within the scope of Communiqué No. 2002/2, been reduced from 40% to 30%.
The market share applied for the undertakings operating in the downstream market as buyers to benefit from the exemption within the scope of vertical agreements including the obligation to provide to a single buyer, has been reduced from 40% to 30%.

Accordingly, it has become a matter of curiosity what the future holds for the undertakings whose market share is between 30% and 40%, since the vertical agreements concluded by these undertakings, which benefited from the exemption prior to the amendment, remained outside the scope of the exemption after the amendment. The Communiqué on Amendment introduced a transitional period of 6 months for undertakings whose market shares are between 30% and 40%, in order for them to review their vertical agreements and business models and to comply their activities with Article 4 of Law No. 4054 or the individual exemption conditions regulated by Article 5. Undertakings in hesitation have the opportunity to determine whether their vertical agreements and business models meet the individual exemption conditions by applying for an individual exemption to the Authority.

It will be seen in the future how this amendment will be reflected in the Authority’s assessment on determining the dominant market position which currently accepted as having at least 40% market share.

You can find the full text of the Communiqué on Amendment here.

You can find our previous article on the subject here.

Close Title

Answer

With the amendment on 24 June 2020 in Law No. 4054 on the Protection of Competition (Law No. 4054), it was stipulated that the procedures and principles regarding the commitment process would be regulated by a communiqué to be issued by the Board. In this regard, the "Communiqué on the Commitments to be Offered in Preliminary Inquiries and Investigations Concerning Agreements, Concerted Practices and Decisions Restricting Competition, and Abuse of Dominant Position" ("Communiqué on Commitment") was published in the Official Gazette dated 16 March 2021 and numbered 31425. The Communiqué on Commitment, which has also applies to the ongoing inquiries as preliminary inquiries and investigations, as of the date of its entry into force, has substantially eliminated the legal gaps and uncertainties experienced since the amendment in 2020, by drawing a legal framework. In addition, it is obvious that the first steps of compliance with the European Union Competition Law in 2021 have been taken with the inclusion of the commitment procedure within the scope of Turkish Competition Law.

Communiqué on Commitment regulates (i) submitting commitments to eliminate the competition issues, (ii) rendering the submitted commitments binding for the undertakings concerned by the Board, (iii) monitoring the commitments by the Authority and regulating procedures and principles accordingly.

Pursuant to the Communiqué on Commitment, undertakings or associations of undertakings under inquiry, are entitled to submit commitments to the Authority and to request the ongoing inquiry to be terminated through the commitments. It is not possible for every pre-inquiries and investigations to benefit from the commitment procedure, since inquires conducted against acts defined as clear and gross violation in the Communiqué on Commitment cannot benefit from the practice of commitment.

For more detailed information on the termination of preliminary inquiries and investigations by means of commitment, you can access the full text of the Communiqué on Commitment here.

You can find our previous article on the subject here.

Answer

The “de minimis” rule, which has been applied by the European Commission for many years, is based on the idea that the agreements, concerted practices, decisions and actions of the association of undertakings that do not exceed certain market shares have a negligible impact on establishing an effective competition. Accordingly, it is accepted that the transactions not exceeding certain market share thresholds are not eligible to restrict competition and therefore cannot be the subject to any preliminary inquiry or investigation.

“Communiqué on Agreements, Concerted Practices and Decisions and Practices of Associations of Undertakings that do not Significantly Restrict Competition” (“Communiqué on De Minimis”) numbered 2021/3, which was largely prepared on the basis of the European Union legislation and adopted by the Board on February 18, 2021, entered into force by being published in the Official Gazette dated 16 March 2021 and numbered 31425. An important step has been taken towards the compliance of Turkish Competition Law to the EU law by constitutionalizing “de minimis rule” which also applies to the ongoing preliminary inquiries and investigations on the date the Communiqué on De Minimis entered into force, which has been applied in the practice of Turkish Competition Law occasionally even before its legal limits had been framed.

Communiqué on De Minimis is aimed to use public resources more efficiently to investigate more severe violations, rather than violations that do not significantly restrict the effective competition.

You can find the full text of the Communiqué on De Minimis here.

You can find our previous article on the subject here.a>

Answer

Communiqué Amending Block Exemption Communiqué on Vertical Agreements numbered 2002/2 (Communiqué No:2021/4) (“Communiqué on Amendment”) has been published in the Official Gazette dated 5 November 2021 and numbered 31650 and has entered into force on the date of its publication.

Pursuant to the Communiqué on Amendment; the market share threshold of 40%, which accepted as a prerequisite for undertakings to benefit the from block exemption for the application of Article 4 of the Law no. 4054, for their activities in the vertical markets have been lowered to 30%. Through the Communiqué on Amendment, the exemption thresholds set forth under the Turkish Competition Law was equalized with the thresholds determined under the EU Law.

Pursuant to the Communiqué on Amendment amending the Article 2 of the Block Exemption Communiqué on Vertical Agreements numbered 2002/2:

The market share applied for the undertakings operating in the upstream market as suppliers to benefit from the exemption, within the scope of Communiqué No. 2002/2, been reduced from 40% to 30%.
The market share applied for the undertakings operating in the downstream market as buyers to benefit from the exemption within the scope of vertical agreements including the obligation to provide to a single buyer, has been reduced from 40% to 30%.

Accordingly, it has become a matter of curiosity what the future holds for the undertakings whose market share is between 30% and 40%, since the vertical agreements concluded by these undertakings, which benefited from the exemption prior to the amendment, remained outside the scope of the exemption after the amendment. The Communiqué on Amendment introduced a transitional period of 6 months for undertakings whose market shares are between 30% and 40%, in order for them to review their vertical agreements and business models and to comply their activities with Article 4 of Law No. 4054 or the individual exemption conditions regulated by Article 5. Undertakings in hesitation have the opportunity to determine whether their vertical agreements and business models meet the individual exemption conditions by applying for an individual exemption to the Authority.

It will be seen in the future how this amendment will be reflected in the Authority’s assessment on determining the dominant market position which currently accepted as having at least 40% market share.

You can find the full text of the Communiqué on Amendment here.

You can find our previous article on the subject here.

Question 2

Sectoral Inquiries

Answer

Preliminary Report on FMCG Retailing Sector Inquiry has been Published.

The first report containing the Authority's inquiries on the fast-moving consumer goods ("FMCG") retailing sector has been published on May 24, 2012, under the title of “Final Report on Turkish FMCG Retailing Sector Inquiry”. Although the relevant report is used in many investigations and inquiries carried out by the Authority, in the Board’s approval decision regarding Migros’ takeover of Tesco, it was emphasized that the market structure in the sector differs in man’ aspects from the market structure that was the subject of the 2012 sector report. Afterwards, the Board decided that it would be beneficial to prepare a new sector report for the FMCG retailing sector. In this direction, the new “Preliminary Report on Turkish FMCG Retailing Sector Inquiry” (“FMCG Report”) prepared by the Authority, has been published on the official website of the Authority on 5 February 2021.

Within the scope of the FMCG Report, the effects of the changing market structure on the undertakings operating in FMCG sector and the consumers were examined in detail and it was concluded that new regulations should be introduced in order to prevent and control the negative effects of these changes on the competition in the market. It can be said that this new FMCG Report concerning FMCG retailing sector which constitutes one of the main lines of the national and world economy, is a kind of a forerunner of new regulations to be introduced to the Turkish Competition Law regarding the sector.

You can find the full text of the report here.

You can find our previous article on the subject here.

A Sector Inquiry for Online Advertising Has Been Initiated.

It was announced on the Authority's website on 6 March 2021 that the "Online Advertising Sector Inquiry" ("Online Advertising Inquiry") was initiated by the Board in order to observe recent developments in the field of online advertising, to identify competition problems in the sector and to develop solutions accordingly.

In line with the results of the inquiry, it is expected for the Authority to make legislative amendments to initiate preliminary inquiries or investigations against certain undertakings or to eliminate competitive concerns. In its announcement, the Board stated that the broadcasting sector's shift from traditional channels to digital media, the acceleration of online advertising with the increase in e-commerce and the increase in internet and social media usage habits made Turkey an important market. The dual market feature of the online advertising sector, which has a complex structure that will attract the attention of many competition authorities around the world, has also been emphasized.

The Online Advertising Inquiry has been initiated to (i) understand the structure and functioning of the sector, (ii) understand the competition problems in the sector, (iii) determine the adequacy of existing Competition Law instruments applied in the sector in terms of establishing effective competition, and (iv) discuss possible new instruments in these areas.

You can find the full text of the announcement here.

You can find our previous article on the subject here.

Preliminary Report on E-Marketplace Platforms Sector Inquiry Has Been Published.

The spread of digitalization has not only reshaped consumer behaviour but also caused radical changes in the consumers' shopping habits. Due to the fact that it is preferred as a method that reduces human contact, especially during the pandemic period, online shopping has gained momentum very recently and has led to the growth of e-commerce accordingly. The growth in the sector has paved the way for the formation of new business models and transferred e-marketplaces and therefore vendors and intermediaries engaging in sales through these platforms into prominent actors. The Preliminary Report on E-Marketplace Platforms Sector Inquiry (“E-Marketplace Platforms Report”) was published on the official website of the Authority on 7 May 2021 in order (i) to define the e-marketplace platforms, which have become so widespread and a source of choice for consumers, (ii) to determine the characteristics of the actors operating in the sector and (iii) to identify the actions that may cause competitive concerns.

You can find the full text of the report here.
You can find our previous article on the subject here.

Inquiry Report on Financial Technologies in Payment Services Has Been Published.

The developments in the field of financial technologies (“FinTech”), especially the ones concerning payment services, which functions as a fund transfer between economic units and became one of the leading sectors in digital transformation, had a worldwide impact so that many jurisdictions published several reports and made regulations to follow the recent developments concerning FinTech in payment services. In the light of these developments, "Inquiry Report on The Financial Technologies in Payment Services" was published on the Authority's website on 9 December 2021, which prepared according to the findings of the studies conducted to (i) evaluate the current situation of the FinTech ecosystem for payment services in Turkey, (ii) determine the effects of the recent developments in FinTech on competition and (iii) determine the approaches to be adopted from the perspective of competition law.

You can find the full report here.

Close Title

Answer

The first report containing the Authority's inquiries on the fast-moving consumer goods ("FMCG") retailing sector has been published on May 24, 2012, under the title of “Final Report on Turkish FMCG Retailing Sector Inquiry”. Although the relevant report is used in many investigations and inquiries carried out by the Authority, in the Board’s approval decision regarding Migros’ takeover of Tesco, it was emphasized that the market structure in the sector differs in man’ aspects from the market structure that was the subject of the 2012 sector report. Afterwards, the Board decided that it would be beneficial to prepare a new sector report for the FMCG retailing sector. In this direction, the new “Preliminary Report on Turkish FMCG Retailing Sector Inquiry” (“FMCG Report”) prepared by the Authority, has been published on the official website of the Authority on 5 February 2021.

Within the scope of the FMCG Report, the effects of the changing market structure on the undertakings operating in FMCG sector and the consumers were examined in detail and it was concluded that new regulations should be introduced in order to prevent and control the negative effects of these changes on the competition in the market. It can be said that this new FMCG Report concerning FMCG retailing sector which constitutes one of the main lines of the national and world economy, is a kind of a forerunner of new regulations to be introduced to the Turkish Competition Law regarding the sector.

You can find the full text of the report here.

You can find our previous article on the subject here.

Answer

It was announced on the Authority's website on 6 March 2021 that the "Online Advertising Sector Inquiry" ("Online Advertising Inquiry") was initiated by the Board in order to observe recent developments in the field of online advertising, to identify competition problems in the sector and to develop solutions accordingly.

In line with the results of the inquiry, it is expected for the Authority to make legislative amendments to initiate preliminary inquiries or investigations against certain undertakings or to eliminate competitive concerns. In its announcement, the Board stated that the broadcasting sector's shift from traditional channels to digital media, the acceleration of online advertising with the increase in e-commerce and the increase in internet and social media usage habits made Turkey an important market. The dual market feature of the online advertising sector, which has a complex structure that will attract the attention of many competition authorities around the world, has also been emphasized.

The Online Advertising Inquiry has been initiated to (i) understand the structure and functioning of the sector, (ii) understand the competition problems in the sector, (iii) determine the adequacy of existing Competition Law instruments applied in the sector in terms of establishing effective competition, and (iv) discuss possible new instruments in these areas.

You can find the full text of the announcement here.

You can find our previous article on the subject here.

Answer

The spread of digitalization has not only reshaped consumer behaviour but also caused radical changes in the consumers' shopping habits. Due to the fact that it is preferred as a method that reduces human contact, especially during the pandemic period, online shopping has gained momentum very recently and has led to the growth of e-commerce accordingly. The growth in the sector has paved the way for the formation of new business models and transferred e-marketplaces and therefore vendors and intermediaries engaging in sales through these platforms into prominent actors. The Preliminary Report on E-Marketplace Platforms Sector Inquiry (“E-Marketplace Platforms Report”) was published on the official website of the Authority on 7 May 2021 in order (i) to define the e-marketplace platforms, which have become so widespread and a source of choice for consumers, (ii) to determine the characteristics of the actors operating in the sector and (iii) to identify the actions that may cause competitive concerns.

You can find the full text of the report here.
You can find our previous article on the subject here.

Answer

The developments in the field of financial technologies (“FinTech”), especially the ones concerning payment services, which functions as a fund transfer between economic units and became one of the leading sectors in digital transformation, had a worldwide impact so that many jurisdictions published several reports and made regulations to follow the recent developments concerning FinTech in payment services. In the light of these developments, "Inquiry Report on The Financial Technologies in Payment Services" was published on the Authority's website on 9 December 2021, which prepared according to the findings of the studies conducted to (i) evaluate the current situation of the FinTech ecosystem for payment services in Turkey, (ii) determine the effects of the recent developments in FinTech on competition and (iii) determine the approaches to be adopted from the perspective of competition law.

You can find the full report here.

Question 3

Board Decisions That Marked The Year 2021

Answer

An Investigation Has Been Initiated Against 32 Undertakings Concerning Gentleman's Agreements in the Labour Market.

Following its decision determining that the findings of the preliminary inquiry are critical and sufficient to initiate a full-fledged investigation, the Board initiated an investigation against 32 undertakings through its decisions dated 15 April 2021, to determine whether the gentleman's agreements concluded in the labour market violate Article 4 of the Law No. 4054. Many leading actors operating in the labour market as; Yemek Sepeti, Zomato, Google, Çiçek Sepeti, NTV, and Getir are among the undertakings subject to the Board’s investigation. In its official announcement regarding the investigation decision, the Authority pointed out that the undertakings operating as employers that are competing for labour force in the labour market: (i) prevent the transfer of their employees to different workplaces through the direct/indirect agreements executed between each other and (ii) deprive their employees of job opportunities that offer higher wages and better conditions and therefore the competitive structure in the labour market is distorted by reduced labour force mobility between undertakings and/or by failure to meet real value of earned wages. In the light of the above, the Authority emphasized that the competitive structure of the labour market should be preserved, especially during the digital era where creativity and innovative intelligence stands out the most.

You can find the official announcement of the Board regarding the investigation here.
You can find our previous article on the subject here.

The Court Ruled That the Board Can Request Information from the Turkish Subsidiaries of Foreign Based Undertakings.

The Board initiated a preliminary inquiry to determine whether banks and financial institutions and their representation offices operating in Turkey are in violation of Law No. 4054 for their activities regarding deposit, credit, foreign currency, bonds, bills, stocks and brokerage services, through its decision dated 17 January 2020 and numbered 20-05/48-M.

Within the scope of the preliminary inquiry, the Authority requested information from the Turkish subsidiaries and/or branches of several banks (“Banks”), including Citibank, Goldman Sachs, ING Bank and JPMorgan and Garanti BBVA, regarding the correspondences of their traders that are employed in USA and UK trading in TL currency and having a certain transaction volume (separately for each country), on Bloomberg and Reuters platforms (chat rooms) between the period 1 August 2018 and 17 January 2020.

Banks, which did not submit the requested information and documents to the Authority on the specified date, submitted the following arguments in their reply letter sent to the Board; (i) they do not possess the relevant correspondences, (ii) the requested data is also related to transactions other than TRY currency, therefore the jurisdiction of the Authority has been exceeded, (iii) with in order to request information from companies in the USA and UK the Authority should comply with the international agreements in force, and (iv) they are in capable of determining the extent of the information that can be provided by the headquarters located abroad pursuant to the applicable local laws.

The responses of the Banks were deemed insufficient by the Board and an administrative fine has been imposed on Banks at the rate of one thousandth of their gross income for 2019. ING Bank, on the other hand, filed a lawsuit before the administrative court for the cancellation of the decision of the Board. However, the decision of the Board regarding requesting information from the foreign based undertakings with headquarters abroad through their Turkish subsidiaries is by making a notification to the subsidiaries in Turkey has been found lawful by Ankara 3rd Administrative Court and that the lawsuit on "cancellation of the administrative fine decision due to failure to submit the requested information and documents" has been dismissed on 4 March 2021.

ou can find our previous article on the subject here

The First Example of Settlement Process in Turkish Competition Law

Within the scope of the settlement mechanism introduced to Turkish Competition law under the "Regulation on the Settlement Procedure for Investigations on Anticompetitive Agreements, Concerted Practices, Decisions and Abuse of Dominant Position" on 15 July 2021, upon the request of the relevant parties or ex officio, the Board is entitled to initiate the settlement procedure and to terminate the investigation, considering the procedural benefits arising from the early completion of the investigation process and different opinions on the existence or scope of the violation.

At a time when the legislative formations of the settlement procedure were still very fresh, the first example of this mechanism has been implemented in practise for the very first time through the Board's decision dated 5 August 2021 and numbered 21-37/524-258.

Within the scope of its decision, the Board decided to terminate the investigation by means of settlement for each party, which has been carried out against five undertakings operating in the electronic goods sector to determine whether they have violated Article 4 of Law No. 4054 by restricting the online sales and determining the resale prices of their distributors.

You can find the official announcement of the decision here.
You can find our previous article on the subject here.

Board’s First Decision On the Termination of a Preliminary Inquiry by Means of Commitment

Despite its busy schedule, the Authority published the first Board decision on the termination of the preliminary inquiry by means of commitment mechanism on its website on 1 November 2021.

As explained under the statutory amendments made in 2021 section, Communiqué on Commitment entered into force by being published in the Official Gazette dated 16 March 2021 and numbered 31425. Communiqué on Commitment also applies to the ongoing inquiries as of the date of its entry into force.

The first application in this regard is as follows; On the date of the Communiqué on Commitment was published, a preliminary investigation was being carried out against Türkiye Şişe ve Cam Fabrikaları A.Ş. and its subsidiary Şişecam Çevre Sistemleri A.Ş. (collectively “Şişecam”) in accordance with Article 40 of Law No. 4054, following which Şişecam filed an application for the initiation of the commitment process in order to eliminate the competitive concerns in the file. As a result of the commitment negotiations held upon Şişecam's application, a comprehensive commitment package has been submitted to the Board by Şişecam.

The commitments submitted by Şişecam were found eligible to eliminate competitive concerns by the Board and the Board decided to terminate the preliminary inquiry by deeming the relevant commitment package binding. In other words, the inquiry process was completed before proceeding to the investigation phase. In the light of the above information, considering the costs incurred throughout the investigation and the administrative fines to be imposed in case of violations, terminating the preliminary inquiry by means of a commitment before heading to a full-fledged investigation appears to be an economic solution in many aspects. Undertakings under preliminary inquiry should definitely consider resorting to this method before proceeding to the investigation phase.

You can find the official announcement regarding the termination of the investigation and the explanation text of the Board here
You can find our previous article on the subject here.

Close Title

Answer

Following its decision determining that the findings of the preliminary inquiry are critical and sufficient to initiate a full-fledged investigation, the Board initiated an investigation against 32 undertakings through its decisions dated 15 April 2021, to determine whether the gentleman's agreements concluded in the labour market violate Article 4 of the Law No. 4054. Many leading actors operating in the labour market as; Yemek Sepeti, Zomato, Google, Çiçek Sepeti, NTV, and Getir are among the undertakings subject to the Board’s investigation. In its official announcement regarding the investigation decision, the Authority pointed out that the undertakings operating as employers that are competing for labour force in the labour market: (i) prevent the transfer of their employees to different workplaces through the direct/indirect agreements executed between each other and (ii) deprive their employees of job opportunities that offer higher wages and better conditions and therefore the competitive structure in the labour market is distorted by reduced labour force mobility between undertakings and/or by failure to meet real value of earned wages. In the light of the above, the Authority emphasized that the competitive structure of the labour market should be preserved, especially during the digital era where creativity and innovative intelligence stands out the most.

You can find the official announcement of the Board regarding the investigation here.
You can find our previous article on the subject here.

Answer

The Board initiated a preliminary inquiry to determine whether banks and financial institutions and their representation offices operating in Turkey are in violation of Law No. 4054 for their activities regarding deposit, credit, foreign currency, bonds, bills, stocks and brokerage services, through its decision dated 17 January 2020 and numbered 20-05/48-M.

Within the scope of the preliminary inquiry, the Authority requested information from the Turkish subsidiaries and/or branches of several banks (“Banks”), including Citibank, Goldman Sachs, ING Bank and JPMorgan and Garanti BBVA, regarding the correspondences of their traders that are employed in USA and UK trading in TL currency and having a certain transaction volume (separately for each country), on Bloomberg and Reuters platforms (chat rooms) between the period 1 August 2018 and 17 January 2020.

Banks, which did not submit the requested information and documents to the Authority on the specified date, submitted the following arguments in their reply letter sent to the Board; (i) they do not possess the relevant correspondences, (ii) the requested data is also related to transactions other than TRY currency, therefore the jurisdiction of the Authority has been exceeded, (iii) with in order to request information from companies in the USA and UK the Authority should comply with the international agreements in force, and (iv) they are in capable of determining the extent of the information that can be provided by the headquarters located abroad pursuant to the applicable local laws.

The responses of the Banks were deemed insufficient by the Board and an administrative fine has been imposed on Banks at the rate of one thousandth of their gross income for 2019. ING Bank, on the other hand, filed a lawsuit before the administrative court for the cancellation of the decision of the Board. However, the decision of the Board regarding requesting information from the foreign based undertakings with headquarters abroad through their Turkish subsidiaries is by making a notification to the subsidiaries in Turkey has been found lawful by Ankara 3rd Administrative Court and that the lawsuit on "cancellation of the administrative fine decision due to failure to submit the requested information and documents" has been dismissed on 4 March 2021.

ou can find our previous article on the subject here

Answer

Within the scope of the settlement mechanism introduced to Turkish Competition law under the "Regulation on the Settlement Procedure for Investigations on Anticompetitive Agreements, Concerted Practices, Decisions and Abuse of Dominant Position" on 15 July 2021, upon the request of the relevant parties or ex officio, the Board is entitled to initiate the settlement procedure and to terminate the investigation, considering the procedural benefits arising from the early completion of the investigation process and different opinions on the existence or scope of the violation.

At a time when the legislative formations of the settlement procedure were still very fresh, the first example of this mechanism has been implemented in practise for the very first time through the Board's decision dated 5 August 2021 and numbered 21-37/524-258.

Within the scope of its decision, the Board decided to terminate the investigation by means of settlement for each party, which has been carried out against five undertakings operating in the electronic goods sector to determine whether they have violated Article 4 of Law No. 4054 by restricting the online sales and determining the resale prices of their distributors.

You can find the official announcement of the decision here.
You can find our previous article on the subject here.

Answer

Despite its busy schedule, the Authority published the first Board decision on the termination of the preliminary inquiry by means of commitment mechanism on its website on 1 November 2021.

As explained under the statutory amendments made in 2021 section, Communiqué on Commitment entered into force by being published in the Official Gazette dated 16 March 2021 and numbered 31425. Communiqué on Commitment also applies to the ongoing inquiries as of the date of its entry into force.

The first application in this regard is as follows; On the date of the Communiqué on Commitment was published, a preliminary investigation was being carried out against Türkiye Şişe ve Cam Fabrikaları A.Ş. and its subsidiary Şişecam Çevre Sistemleri A.Ş. (collectively “Şişecam”) in accordance with Article 40 of Law No. 4054, following which Şişecam filed an application for the initiation of the commitment process in order to eliminate the competitive concerns in the file. As a result of the commitment negotiations held upon Şişecam's application, a comprehensive commitment package has been submitted to the Board by Şişecam.

The commitments submitted by Şişecam were found eligible to eliminate competitive concerns by the Board and the Board decided to terminate the preliminary inquiry by deeming the relevant commitment package binding. In other words, the inquiry process was completed before proceeding to the investigation phase. In the light of the above information, considering the costs incurred throughout the investigation and the administrative fines to be imposed in case of violations, terminating the preliminary inquiry by means of a commitment before heading to a full-fledged investigation appears to be an economic solution in many aspects. Undertakings under preliminary inquiry should definitely consider resorting to this method before proceeding to the investigation phase.

You can find the official announcement regarding the termination of the investigation and the explanation text of the Board here
You can find our previous article on the subject here.

Question 4

Sector Based Developments

Answer

As in 2020, 2021 has been a year full of preliminary inquiries and investigations, exemption assessments and committed and uncommitted clearances granted to mergers and acquisitions transactions resolved by the Authority on a sectoral basis. The changing global economic balances, the new variants emerging in the Covid 19 virus, and the rapidly growing digitalization in all areas have a great impact on the Authority's focus on certain sectors, especially in 2021.

By the end of 2021, Mergers and Acquisitions Overview Report for 2021³ , prepared by the Economic Analysis and Research Department of the Authority, was published on the Authority's website on 7 January 2022. These annually published reports, provide an insight of the sectoral analysis of mergers and acquisitions transactions as well as reveal trade volumes on a sectoral basis of the merger and acquisition transactions in the relevant year, by indicating each sectors that attracts the interest of the investors the most

It has been recorded that the total transaction value of the Turkey based mergers and acquisitions reviewed by the Authority in 2021 is approximately TRY 137.5 billion. A sector-specific analysis indicated that the highest transaction value among the Turkey based transactions, including privatization transactions in 2021 is realized as TRY 89.3 billion in the “airport operation” sector whereas highest transaction value among the Turkey based transactions, excluding privatization transactions is recorded as TRY 3 billion 691 million in the "production of plastic packaging materials" sector.

Considering the above data and the Authority's 2021 decisions, we preferred to review significant Board decisions in two separate headings on a sectoral basis in this bulletin, and the ongoing systematic has been arranged accordingly.

Information and Communication Technologies Sector

Information and Communication Technologies (“ICT”) sector which includes the development⁴ and production of digital devices, digital equipment, digital materials, telecommunication services, network services and broadcasting services has rapidly grown throughout the world especially within the recent period.

According to TÜBSİAD data, with the effect of the Covid 19 virus, the global ICT market size downsized by 2.2% in 2020 to 3.8 trillion dollars⁵ , while the information technologies market size downsized by 0.2% and the communication technologies market size downsized by 4.0%.

Although the data for 2021 has not been shared by TÜBSİAD or any other organization yet, forecasts for 2020 projected that the global ICT market size will reach 4.1 trillion dollars with a growth of 8.4% in 2021 and will reach 5.0 trillion dollars in 2025 with an annual growth of 5.3%.

According to the TÜBSİAD statistics, the ICT market size, which was TRY 152.9 billion in 2019 in Turkey, reached TRY 189 billion in 2020 with a 22% growth and it is stated that there will be a 32% growth in the ICT market for 2021.

Although there is no official data published on the market share reached by the sector for the year 2021, interest to the ICT sector and the investor appetite can be clearly understood from the decisions of the Authority.

1. The Board Announced an Ex-officio Investigation Against Facebook and WhatsApp.

In the past months, WhatsApp has sent a notification to its users with updated terms of use and privacy policies, and accordingly, users must approve the transferring of their data to Facebook companies by WhatsApp in order to continue using WhatsApp. It was stated that users who do not give consent to such data transfer will not be able to use WhatsApp as of 8 February 2021.

The Board announced that it has initiated an ex officio investigation against Facebook Inc., Facebook Ireland Ltd., WhatsApp Inc. and WhatsApp LLC (collectively referred to as “Facebook”) regarding the data transferring obligation imposed on WhatsApp users with its decision dated 11 January 2021 and numbered 21-02/25-M, with the reference that such data transferring may raise competitive concerns, on the grounds that it will cause Facebook and other group companies to collect, process and use more data than they can obtain in a competitive environment. The investigation which will be carried out within the scope of Article 6 of Law No. 4054, which prohibits undertakings from abusing their dominant position in the goods or services market, will review Facebook's position in the market and whether it abuses such position.

Until the investigation is concluded and the decision is finalized, the possibility of serious and irreparable damage from the subject practices has been taken into consideration, and the Board decided to impose an interim measure to Facebook within the framework of Article 9 of the Law No. 4054. Within the scope of this interim measure, it has been decided Facebook (i) to suspend its new conditions for WhatsApp users in Turkey regarding the use of their data for other services as of 8 February 2021 and (ii) be required to notify all users in Turkey who accept or do not accept these conditions that, the conditions to be implemented are now suspended until the date determined by the Board.
You can find the official announcement of the Board regarding the investigation here.

2. The Reasons for the Interim Measure Imposed on Facebook and WhatsApp Has Been Published by the Board.

The reasons for the interim measure imposed by the Board on WhatsApp within the scope of the ex officio investigation being carried out against Facebook regarding the data transferring obligation has been published.

The interim measure decision stated that the data transferred on WhatsApp is mostly aimed to be shared between two people or to smaller groups and is generally related to private life matters or trade secrets, therefore, the data shared via WhatsApp is generally the data that people do not wish to share with a wide circle of people compared to any other social media content.

In addition, it has been stated that the use of this data in other markets where Facebook operates which is a condition to use WhatsApp may cause (i) WhatsApp data to be linked to other Facebook company products and data, (ii) Facebook to use its power in the consumer communication services market in a way to obstruct the activities of its competitors in the field of online advertising and (iii) collection of excessive data and therefore using of such data for other services which may lead to consumer exploitation and raise competitive concerns.

Considering Facebook's market power on the consumer communication services, social networking services and online advertising services markets, the possibility of such practices causing serious and irreparable damage has been re-emphasized, and the Board has determined the imposition of an interim measure to Facebook within the framework of Article 9 of the Law No. 4054.
You can find the measure decision of the Board here.

3. The Competition Authority Decided to Impose an Administrative Fine to Google for Abusing Its Dominant Position.

Within the scope of the investigation conducted for the allegation that the economic entity comprised of Google Reklamcılık ve Pazarlama Ltd. Şti., Google International LLC, Google LLC, Google Ireland Limited and Alphabet Inc. (“Google”) abused its dominant position in the general search services market and positioned its own local search services in a way to exclude the activities of other market players, the Board imposed an administrative fine of TRY 296,084,899.49 on Google within the scope of Article 6 of Law No. 4054 through its decision numbered 20-49/675-295 within the scope of the file numbered 2018-2-038.

In its investigation decision, the Board stated that Google places its own local search and accommodation price comparison services at the top of the general search results in its Local Unit and states by way of obstructing the activities of its competitors operating in the local search and accommodation price comparison market.

This investigation is the 4th investigation carried out by the Board against Google since 2017. Within the scope of these investigations, which drew the attention of the public, the Board has conducted investigations against Google based on the allegations that (i) Google abuses its dominant position through the agreements executed with mobile device manufacturers that include obligations to set Google search as the default browser on mobile devices and to position Google application on the home screen; (ii) Google abuses its dominant position through the algorithm updates and AdWords advertisements in the general search services, and (iii) Google abuses its dominant position in the general search services market, by obstructing the activities of its competitors in the online shopping comparison services market of which the Board has determined that Google has violated of Article 6 of Law No. 4054 in each of these investigations.
You can find the most recent Google decision of the Board here.

4. The Board Decided Türk Telekomünikasyon and TTNET Is Not in Violation of Article 6 of the Law for the “All Inclusive Campaign”.

The Board initiated a preliminary inquiry through its decision dated 31.05.2018 and numbered 18-17/308-M against Türk Telekomünikasyon A.Ş. and TTNET A.Ş. (together “Türk Telekom”), upon the complaints filed by Superonline İletişim Hizmetleri A.Ş., to determine whether Türk Telekom is in violation of Article 6 of the Law No. 4054 by means of price squeeze within the scope of its “All Inclusive Campaign”.

As the result of the findings of the preliminary inquiry, it was decided that the pricing practices of Türk Telekom in its campaigns is not in the nature of price squeeze and therefore there is no need to initiate a full-fledged investigation against Türk Telekom. Subsequently, as a result of the lawsuit filed against the Board’s decision on not to initiate an investigation, 14th Administrative Court of Ankara decided to cancel the Board's decision. Upon the cancellation of the decision, the Board initiated an investigation against Türk Telekom to determine based on the allegations included in the complaint file through its decision dated 14.05.2020 and numbered 20-24/312-M.

Pursuant to the Board's decision dated 25 February 2021 and numbered 21-10/139-57, the investigation carried out against Türk Telekom has been concluded, and the Board decided that (i) TTNET A.Ş. enjoys a dominant position in the retail fixed broadband internet access services market and Türk Telekomünikasyon A.Ş. enjoys a dominant position in the wholesale fixed broadband internet access services market, (ii) although they enjoy dominant positions, Türk Telekom's pricing is in line with the market conditions according to the economic Net Present Value (“NPV”) analysis and therefore such practices do not violate Article 6 of the Law No. 4054, as such (iii) there is no need to impose an administrative fine on Türk Telekom.
You can access the Board's decision on the investigation here.

5. The Board Imposed an Interim Measure On Trendyol within the Scope of the Ongoing Investigation

The Board, initiated a preliminary inquiry on DSM Grup Danışmanlık İletişim ve Satış Ticaret A.Ş. together with the other undertakings under the same economic unit (“Trendyol”), based on the allegations that Trendyol’s practices in the online marketplaces is in violation of Articles 4 and 6 of Law No. 4054, through its decision dated 29 July 2021 and numbered 21-36/487-M.

As a result of the on-site reviews on algorithms and data in information systems of Trendyol during the pre-inquiry process, it has been identified that (i) Trendyol operates as an intermediary sales platform for the sales of third-party vendors and operates as a vendor itself by selling its own brands such as TrendyolMilla on the same platform, (ii) interferes with the algorithms on the platform by making adjustments which gives an unfair advantage to its own products, (iii) uses the data obtained within the scope of the marketplace activities to create a marketing strategy for its own brands, and (iv) discriminates among the sellers making sales in its platforms by intervening with the algorithms. In the light of the foregoing, the Board initiated a full-fledged investigation against Trendyol through its decision dated 23 September 2021 and numbered 21-44/650-M.

In this context, the Board, has imposed some measures on Trendyol to be implemented during and after the investigation with its decision dated 30 September 30 and numbered 21-46/669-334. Among the measures to be taken are:

(i) Terminating all kinds of actions, conducts, and practices, including interventions made through algorithms and codes to provide advantage to its own products and services against its competitors and avoiding such practises during the continuation of the investigation process,

(ii) Stopping the transfer and use of all kinds of data obtained and produced through its provision of marketplace activities for its own r other products and services and avoiding such practises during the continuation of the investigation process,

(iii) keeping the parametric and structural changes made on all algorithm models used for product search, seller listing, seller score calculation, etc. on Trendyol platform for at least 8 (eight) years, with versions and undeniable accuracy.

It should be noted that the investigation conducted against Trendyol largely resembled the investigations conducted by the Board against Google based on the allegations that (i) Google abuses its dominant position in the general search services market, by obstructing the activities of its competitors in the online shopping comparison services market and (ii) Google abuses its dominant position in the general search services market by positioning its own local search services in a way to obstruct the activities of other market players. Within the scope of such investigations, the Board determined that Google has been placing the results for which it takes advertisements at the top of the general search results by disrupting the organic results, thus obstructing the activities of undertakings providing shopping and local accommodation services.

It can be said that, especially with the development of the ICT market, the cases where an undertaking enjoying a dominant position in the online markets provides advantages to the services that provide financial earnings to themselves against the activities of their competitors providing services on the same platforms, are under close follow-up of the Board.

You can find the measure decision of the Board here.

Food and Beverage Sector

The Food and Beverage sector which includes the production, distribution, sale, and retailing services of food and beverage products, which are the most basic and nondeferrable needs of humanity, and thus can be considered as the building blocks of national economies⁶ , is one of the most vital and strategic sectors. The Food and Beverage Sector is a sub-sector of the manufacturing industry within the scope of the United Nations' 3rd Revision of the International Standard Industrial Classification of All Economic Activities (ISIC Rev. 3)⁷ . Considering the increasing global food demand, an uninterrupted Food and Beverage sector⁸ with the capacity to produce, distribute and sell food and beverages in accordance with international standards is seen as one of the locomotive sectors of the economy.

The Food and Beverage sector has a highly competitive structure due to the clustering of many undertakings in the same or different levels of the production and distribution chain. According to the TGDF Digital Data Panel, which is prepared every year by the Turkish Statistical Institute (“TSI”) based on Foreign Trade Data, in the first 9 months of 2021, exports amounted to 15.9 billion dollars whereas imports amounted to 12.2 billion dollars⁹ in the agriculture, food and beverage sector. In parallel with all these developments, the Authority has resolved decisions and prepared sector reports that will serve as precedents in the Food and Beverage sector in 2021 and has increased its efforts to maintain the competitive structure of the relevant market.

1. The Competition Authority Published Its Decision on Unilever Regarding the Allegations of Violation of Articles 4 and 6 of the Law.

Upon the complaints filed, the Board initiated an investigation against Unilever Sanayi ve Ticaret Türk AŞ (“Unilever”), on 24 July 2020 to determine whether Unilever the manufacturer of Algida branded ice cream products, is in violation of Articles 4 and 6 of the Law no. 4054 by creating de facto exclusivity by preventing the sale of competitor products at final sales points through various practices. In the application, it was alleged that Unilever motivates its final sales point customers to sell a single brand by paying concessions in order to increase the availability of Algida products.

The Board concluded the investigation through its decision dated 18 March 2021 and numbered 21-15/190-80 and determined that Unilever enjoys a dominant position in the industrial ice cream market, fast consumed ice cream market, and at home consumed ice cream market. Accordingly, on the grounds that (i) Unilever continued its activities on the cabin exclusivity and discount systems throughout the 1.5-year investigation period, that previously committed not to continue before the Board, and therefore Unilever abused its dominant position and (ii) created de facto exclusivity with the non-compete obligations included in the agreements executed with Getir Perakende, the Board imposed an administrative fine on Unilever in the amount of 480,217,216 million TRY in total, due to the violation of Articles 4 and 6 of Law No. 4054. In addition to the administrative fine, the Board also imposed regulatory sanctions on Unilever in order to terminate the above mentioned practices.

You can access the Board's decision on the investigation here.

2. Authority Published Its Decision Against 46 Undertakings Operating in Wheat Flour Market.

The Board, through its decisions numbered (i) 19-21/305-M and dated 13 June 2019, (ii) 19-36/540-M and dated 24 October 2019, and (iii) 20-01/5-M and dated 02.01.2020, initiated an investigation to determine whether 46 undertakings operating in the wheat flour market, are in violation of Article 4 of the Law no. 4054 by simultaneously increasing their prices.

During the on-site reviews carried out by the Board, it has been identified that Karadeniz Un Sanayicileri Derneği (the Black Sea Flour Industrialists' Association) (“KUSAD”), which is affiliated to certain undertakings under the inquiry, has held meetings with its members to discuss the sale prices of flour, has regularly collected the price lists containing the wheat flour sales prices from its members after the meetings and has circulated the collected price lists among its members with the purpose of managing the wheat flour prices among the member undertakings. The investigation concluded through Board's decision dated 7 January 2021 and numbered 21-01/18-8 and monetary fines were imposed on 34 undertakings.

You can access the Board's decision on the investigation here.

3. The Authority Concluded Its Investigation Against the Undertakings in the Retail Food and Cleaning Products Market.

The Board, initiated an investigation through its decision dated May 7, 2020 and numbered 20-23/298, against 29 undertakings operating as (i) chain stores engaging the retail of food and cleaning products as well as (ii) the suppliers of chain stores manufacturing and wholesaling of food and cleaning products to examine the pricing behaviours of such undertakings during the COVID-19 outbreak.

Within the scope of the investigation, The Board examined whether the chain stores exchange information to determine retail sales prices through common third parties with which they have vertical relationships i.e. common suppliers. The Board concluded the investigation through its decision dated 28 October 2021 and numbered 21-53/747-360 and determined that (i) the chain markets Yeni Mağazacılık A.Ş., BİM Birleşik Mağazalar A.Ş., CarrefourSA Carrefour Sabancı Ticaret Merkezi A.Ş., Migros Ticaret A.Ş. and Şok Marketler Ticaret A.Ş., have formed an ABC information exchange (“hub and spoke”) cartel through their supplier Savola Gıda ve San. Tic. A.Ş.'s collect-distribute method and (ii) to impose administrative fines on the 6 above mentioned undertakings based on their annual gross revenues of the fiscal year 2020 determined by the Board. Additionally, it has been determined that there is no need to impose administrative fines on the other remaining 23 undertakings that are under investigation.

You can access the final decision statement of the Board here.

4. The Authority Announced that the Investigation Conducted on Coca-Cola is Terminated by Means of Commitment.

The Board, initiated an investigation against Coca Cola Sales and Distribution AŞ (“Coca Cola”) through its decision dated 2 April 2020, based on the allegations that Coca Cola, which operates in the non-alcoholic commercial beverages market under many product categories, violated Law No. 4054 by preventing the sale of competing products at the final sales points.

The basis of this investigation is the Board's decision dated 10 September 2007, which reviewed the non-alcoholic commercial beverages sector in detail. In such decision, the Board has determined that Coca-Cola enjoys a dominant position in the market for carbonated beverages and Coca-Cola to terminate the agreements including exclusive distribution clauses for these products. In addition, various regulations were introduced, such as making 20% of the coolers owned by Coca-Cola available to competitors at the sale points of sale in case of the absence of competitors’ cooler. In this framework, the Board aimed to eliminate competitive problems with the initiation of the investigation in 2020 and imposition of new regulations by taking into consideration the changes that have occurred in the sector during the past 14-years.

During the investigation phase, Coca-Cola benefitted from the Communiqué on Commitment entered into force on 2 September 2021, by the commitment application to eliminate the competitive concerns in the file. Within the scope of the negotiations held during the commitment process, it has been determined that the commitment package proposed by CocaCola is proportional and suitable to the eliminate the competitive concerns, can be fulfilled in a short time, and can be implemented effectively so that it has been decided to terminate the investigation by making commitment package to be binding.

With the announcement dated 8 September 2021 published on its official website, the Board shared the details of the commitment package with the public and re-emphasized that the competitive structure in the still beverage markets is under its review as well.

You can access the comprehensive statement of the Board regarding the commitments made by Coca Cola here.

5. The Authority Announced the Investigation Initiated Against 13 Undertakings Operating in the FMCG Market.

The Board announced on its official website on 3 June 2021 that based on the information and documents obtained and determinations made within the scope of the investigation conducted against the undertakings operating in the retail food and cleaning products market the details of which are explained above, it has initiated an investigation against 13 undertakings, which were not parties to the retail food and cleaning products market investigation.

At first within the scope of the preliminary inquiry, the Board examined whether the producers/suppliers operating in FMCG market, including Red Bull, Şölen Chocolate, Pepsi Cola, Eti Gıda and Beypazarı indirectly intermediates the exchange of competitively sensitive information such as future prices, price transition dates, seasonal activities and campaigns between the supermarket chains; ensures the coordination of the prices and/or price transitions of the supermarket chains; and/or engages in the determination of the resale prices. Upon the strong suspicion that the inquired undertakings have committed the aforementioned practices, the Board has decided to initiate an ex officio investigation against 13 undertakings.

You can access the official announcement of the Board here.

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Answer

Information and Communication Technologies (“ICT”) sector which includes the development⁴ and production of digital devices, digital equipment, digital materials, telecommunication services, network services and broadcasting services has rapidly grown throughout the world especially within the recent period.

According to TÜBSİAD data, with the effect of the Covid 19 virus, the global ICT market size downsized by 2.2% in 2020 to 3.8 trillion dollars⁵ , while the information technologies market size downsized by 0.2% and the communication technologies market size downsized by 4.0%.

Although the data for 2021 has not been shared by TÜBSİAD or any other organization yet, forecasts for 2020 projected that the global ICT market size will reach 4.1 trillion dollars with a growth of 8.4% in 2021 and will reach 5.0 trillion dollars in 2025 with an annual growth of 5.3%.

According to the TÜBSİAD statistics, the ICT market size, which was TRY 152.9 billion in 2019 in Turkey, reached TRY 189 billion in 2020 with a 22% growth and it is stated that there will be a 32% growth in the ICT market for 2021.

Although there is no official data published on the market share reached by the sector for the year 2021, interest to the ICT sector and the investor appetite can be clearly understood from the decisions of the Authority.

1. The Board Announced an Ex-officio Investigation Against Facebook and WhatsApp.

In the past months, WhatsApp has sent a notification to its users with updated terms of use and privacy policies, and accordingly, users must approve the transferring of their data to Facebook companies by WhatsApp in order to continue using WhatsApp. It was stated that users who do not give consent to such data transfer will not be able to use WhatsApp as of 8 February 2021.

The Board announced that it has initiated an ex officio investigation against Facebook Inc., Facebook Ireland Ltd., WhatsApp Inc. and WhatsApp LLC (collectively referred to as “Facebook”) regarding the data transferring obligation imposed on WhatsApp users with its decision dated 11 January 2021 and numbered 21-02/25-M, with the reference that such data transferring may raise competitive concerns, on the grounds that it will cause Facebook and other group companies to collect, process and use more data than they can obtain in a competitive environment. The investigation which will be carried out within the scope of Article 6 of Law No. 4054, which prohibits undertakings from abusing their dominant position in the goods or services market, will review Facebook's position in the market and whether it abuses such position.

Until the investigation is concluded and the decision is finalized, the possibility of serious and irreparable damage from the subject practices has been taken into consideration, and the Board decided to impose an interim measure to Facebook within the framework of Article 9 of the Law No. 4054. Within the scope of this interim measure, it has been decided Facebook (i) to suspend its new conditions for WhatsApp users in Turkey regarding the use of their data for other services as of 8 February 2021 and (ii) be required to notify all users in Turkey who accept or do not accept these conditions that, the conditions to be implemented are now suspended until the date determined by the Board.
You can find the official announcement of the Board regarding the investigation here.

2. The Reasons for the Interim Measure Imposed on Facebook and WhatsApp Has Been Published by the Board.

The reasons for the interim measure imposed by the Board on WhatsApp within the scope of the ex officio investigation being carried out against Facebook regarding the data transferring obligation has been published.

The interim measure decision stated that the data transferred on WhatsApp is mostly aimed to be shared between two people or to smaller groups and is generally related to private life matters or trade secrets, therefore, the data shared via WhatsApp is generally the data that people do not wish to share with a wide circle of people compared to any other social media content.

In addition, it has been stated that the use of this data in other markets where Facebook operates which is a condition to use WhatsApp may cause (i) WhatsApp data to be linked to other Facebook company products and data, (ii) Facebook to use its power in the consumer communication services market in a way to obstruct the activities of its competitors in the field of online advertising and (iii) collection of excessive data and therefore using of such data for other services which may lead to consumer exploitation and raise competitive concerns.

Considering Facebook's market power on the consumer communication services, social networking services and online advertising services markets, the possibility of such practices causing serious and irreparable damage has been re-emphasized, and the Board has determined the imposition of an interim measure to Facebook within the framework of Article 9 of the Law No. 4054.
You can find the measure decision of the Board here.

3. The Competition Authority Decided to Impose an Administrative Fine to Google for Abusing Its Dominant Position.

Within the scope of the investigation conducted for the allegation that the economic entity comprised of Google Reklamcılık ve Pazarlama Ltd. Şti., Google International LLC, Google LLC, Google Ireland Limited and Alphabet Inc. (“Google”) abused its dominant position in the general search services market and positioned its own local search services in a way to exclude the activities of other market players, the Board imposed an administrative fine of TRY 296,084,899.49 on Google within the scope of Article 6 of Law No. 4054 through its decision numbered 20-49/675-295 within the scope of the file numbered 2018-2-038.

In its investigation decision, the Board stated that Google places its own local search and accommodation price comparison services at the top of the general search results in its Local Unit and states by way of obstructing the activities of its competitors operating in the local search and accommodation price comparison market.

This investigation is the 4th investigation carried out by the Board against Google since 2017. Within the scope of these investigations, which drew the attention of the public, the Board has conducted investigations against Google based on the allegations that (i) Google abuses its dominant position through the agreements executed with mobile device manufacturers that include obligations to set Google search as the default browser on mobile devices and to position Google application on the home screen; (ii) Google abuses its dominant position through the algorithm updates and AdWords advertisements in the general search services, and (iii) Google abuses its dominant position in the general search services market, by obstructing the activities of its competitors in the online shopping comparison services market of which the Board has determined that Google has violated of Article 6 of Law No. 4054 in each of these investigations.
You can find the most recent Google decision of the Board here.

4. The Board Decided Türk Telekomünikasyon and TTNET Is Not in Violation of Article 6 of the Law for the “All Inclusive Campaign”.

The Board initiated a preliminary inquiry through its decision dated 31.05.2018 and numbered 18-17/308-M against Türk Telekomünikasyon A.Ş. and TTNET A.Ş. (together “Türk Telekom”), upon the complaints filed by Superonline İletişim Hizmetleri A.Ş., to determine whether Türk Telekom is in violation of Article 6 of the Law No. 4054 by means of price squeeze within the scope of its “All Inclusive Campaign”.

As the result of the findings of the preliminary inquiry, it was decided that the pricing practices of Türk Telekom in its campaigns is not in the nature of price squeeze and therefore there is no need to initiate a full-fledged investigation against Türk Telekom. Subsequently, as a result of the lawsuit filed against the Board’s decision on not to initiate an investigation, 14th Administrative Court of Ankara decided to cancel the Board's decision. Upon the cancellation of the decision, the Board initiated an investigation against Türk Telekom to determine based on the allegations included in the complaint file through its decision dated 14.05.2020 and numbered 20-24/312-M.

Pursuant to the Board's decision dated 25 February 2021 and numbered 21-10/139-57, the investigation carried out against Türk Telekom has been concluded, and the Board decided that (i) TTNET A.Ş. enjoys a dominant position in the retail fixed broadband internet access services market and Türk Telekomünikasyon A.Ş. enjoys a dominant position in the wholesale fixed broadband internet access services market, (ii) although they enjoy dominant positions, Türk Telekom's pricing is in line with the market conditions according to the economic Net Present Value (“NPV”) analysis and therefore such practices do not violate Article 6 of the Law No. 4054, as such (iii) there is no need to impose an administrative fine on Türk Telekom.
You can access the Board's decision on the investigation here.

5. The Board Imposed an Interim Measure On Trendyol within the Scope of the Ongoing Investigation

The Board, initiated a preliminary inquiry on DSM Grup Danışmanlık İletişim ve Satış Ticaret A.Ş. together with the other undertakings under the same economic unit (“Trendyol”), based on the allegations that Trendyol’s practices in the online marketplaces is in violation of Articles 4 and 6 of Law No. 4054, through its decision dated 29 July 2021 and numbered 21-36/487-M.

As a result of the on-site reviews on algorithms and data in information systems of Trendyol during the pre-inquiry process, it has been identified that (i) Trendyol operates as an intermediary sales platform for the sales of third-party vendors and operates as a vendor itself by selling its own brands such as TrendyolMilla on the same platform, (ii) interferes with the algorithms on the platform by making adjustments which gives an unfair advantage to its own products, (iii) uses the data obtained within the scope of the marketplace activities to create a marketing strategy for its own brands, and (iv) discriminates among the sellers making sales in its platforms by intervening with the algorithms. In the light of the foregoing, the Board initiated a full-fledged investigation against Trendyol through its decision dated 23 September 2021 and numbered 21-44/650-M.

In this context, the Board, has imposed some measures on Trendyol to be implemented during and after the investigation with its decision dated 30 September 30 and numbered 21-46/669-334. Among the measures to be taken are:

(i) Terminating all kinds of actions, conducts, and practices, including interventions made through algorithms and codes to provide advantage to its own products and services against its competitors and avoiding such practises during the continuation of the investigation process,

(ii) Stopping the transfer and use of all kinds of data obtained and produced through its provision of marketplace activities for its own r other products and services and avoiding such practises during the continuation of the investigation process,

(iii) keeping the parametric and structural changes made on all algorithm models used for product search, seller listing, seller score calculation, etc. on Trendyol platform for at least 8 (eight) years, with versions and undeniable accuracy.

It should be noted that the investigation conducted against Trendyol largely resembled the investigations conducted by the Board against Google based on the allegations that (i) Google abuses its dominant position in the general search services market, by obstructing the activities of its competitors in the online shopping comparison services market and (ii) Google abuses its dominant position in the general search services market by positioning its own local search services in a way to obstruct the activities of other market players. Within the scope of such investigations, the Board determined that Google has been placing the results for which it takes advertisements at the top of the general search results by disrupting the organic results, thus obstructing the activities of undertakings providing shopping and local accommodation services.

It can be said that, especially with the development of the ICT market, the cases where an undertaking enjoying a dominant position in the online markets provides advantages to the services that provide financial earnings to themselves against the activities of their competitors providing services on the same platforms, are under close follow-up of the Board.

You can find the measure decision of the Board here.

Answer

In the past months, WhatsApp has sent a notification to its users with updated terms of use and privacy policies, and accordingly, users must approve the transferring of their data to Facebook companies by WhatsApp in order to continue using WhatsApp. It was stated that users who do not give consent to such data transfer will not be able to use WhatsApp as of 8 February 2021.

The Board announced that it has initiated an ex officio investigation against Facebook Inc., Facebook Ireland Ltd., WhatsApp Inc. and WhatsApp LLC (collectively referred to as “Facebook”) regarding the data transferring obligation imposed on WhatsApp users with its decision dated 11 January 2021 and numbered 21-02/25-M, with the reference that such data transferring may raise competitive concerns, on the grounds that it will cause Facebook and other group companies to collect, process and use more data than they can obtain in a competitive environment. The investigation which will be carried out within the scope of Article 6 of Law No. 4054, which prohibits undertakings from abusing their dominant position in the goods or services market, will review Facebook's position in the market and whether it abuses such position.

Until the investigation is concluded and the decision is finalized, the possibility of serious and irreparable damage from the subject practices has been taken into consideration, and the Board decided to impose an interim measure to Facebook within the framework of Article 9 of the Law No. 4054. Within the scope of this interim measure, it has been decided Facebook (i) to suspend its new conditions for WhatsApp users in Turkey regarding the use of their data for other services as of 8 February 2021 and (ii) be required to notify all users in Turkey who accept or do not accept these conditions that, the conditions to be implemented are now suspended until the date determined by the Board.
You can find the official announcement of the Board regarding the investigation here.

Answer

The reasons for the interim measure imposed by the Board on WhatsApp within the scope of the ex officio investigation being carried out against Facebook regarding the data transferring obligation has been published.

The interim measure decision stated that the data transferred on WhatsApp is mostly aimed to be shared between two people or to smaller groups and is generally related to private life matters or trade secrets, therefore, the data shared via WhatsApp is generally the data that people do not wish to share with a wide circle of people compared to any other social media content.

In addition, it has been stated that the use of this data in other markets where Facebook operates which is a condition to use WhatsApp may cause (i) WhatsApp data to be linked to other Facebook company products and data, (ii) Facebook to use its power in the consumer communication services market in a way to obstruct the activities of its competitors in the field of online advertising and (iii) collection of excessive data and therefore using of such data for other services which may lead to consumer exploitation and raise competitive concerns.

Considering Facebook's market power on the consumer communication services, social networking services and online advertising services markets, the possibility of such practices causing serious and irreparable damage has been re-emphasized, and the Board has determined the imposition of an interim measure to Facebook within the framework of Article 9 of the Law No. 4054.
You can find the measure decision of the Board here.

Answer

Within the scope of the investigation conducted for the allegation that the economic entity comprised of Google Reklamcılık ve Pazarlama Ltd. Şti., Google International LLC, Google LLC, Google Ireland Limited and Alphabet Inc. (“Google”) abused its dominant position in the general search services market and positioned its own local search services in a way to exclude the activities of other market players, the Board imposed an administrative fine of TRY 296,084,899.49 on Google within the scope of Article 6 of Law No. 4054 through its decision numbered 20-49/675-295 within the scope of the file numbered 2018-2-038.

In its investigation decision, the Board stated that Google places its own local search and accommodation price comparison services at the top of the general search results in its Local Unit and states by way of obstructing the activities of its competitors operating in the local search and accommodation price comparison market.

This investigation is the 4th investigation carried out by the Board against Google since 2017. Within the scope of these investigations, which drew the attention of the public, the Board has conducted investigations against Google based on the allegations that (i) Google abuses its dominant position through the agreements executed with mobile device manufacturers that include obligations to set Google search as the default browser on mobile devices and to position Google application on the home screen; (ii) Google abuses its dominant position through the algorithm updates and AdWords advertisements in the general search services, and (iii) Google abuses its dominant position in the general search services market, by obstructing the activities of its competitors in the online shopping comparison services market of which the Board has determined that Google has violated of Article 6 of Law No. 4054 in each of these investigations.
You can find the most recent Google decision of the Board here.

Answer

The Board initiated a preliminary inquiry through its decision dated 31.05.2018 and numbered 18-17/308-M against Türk Telekomünikasyon A.Ş. and TTNET A.Ş. (together “Türk Telekom”), upon the complaints filed by Superonline İletişim Hizmetleri A.Ş., to determine whether Türk Telekom is in violation of Article 6 of the Law No. 4054 by means of price squeeze within the scope of its “All Inclusive Campaign”.

As the result of the findings of the preliminary inquiry, it was decided that the pricing practices of Türk Telekom in its campaigns is not in the nature of price squeeze and therefore there is no need to initiate a full-fledged investigation against Türk Telekom. Subsequently, as a result of the lawsuit filed against the Board’s decision on not to initiate an investigation, 14th Administrative Court of Ankara decided to cancel the Board's decision. Upon the cancellation of the decision, the Board initiated an investigation against Türk Telekom to determine based on the allegations included in the complaint file through its decision dated 14.05.2020 and numbered 20-24/312-M.

Pursuant to the Board's decision dated 25 February 2021 and numbered 21-10/139-57, the investigation carried out against Türk Telekom has been concluded, and the Board decided that (i) TTNET A.Ş. enjoys a dominant position in the retail fixed broadband internet access services market and Türk Telekomünikasyon A.Ş. enjoys a dominant position in the wholesale fixed broadband internet access services market, (ii) although they enjoy dominant positions, Türk Telekom's pricing is in line with the market conditions according to the economic Net Present Value (“NPV”) analysis and therefore such practices do not violate Article 6 of the Law No. 4054, as such (iii) there is no need to impose an administrative fine on Türk Telekom.
You can access the Board's decision on the investigation here.

Answer

The Board, initiated a preliminary inquiry on DSM Grup Danışmanlık İletişim ve Satış Ticaret A.Ş. together with the other undertakings under the same economic unit (“Trendyol”), based on the allegations that Trendyol’s practices in the online marketplaces is in violation of Articles 4 and 6 of Law No. 4054, through its decision dated 29 July 2021 and numbered 21-36/487-M.

As a result of the on-site reviews on algorithms and data in information systems of Trendyol during the pre-inquiry process, it has been identified that (i) Trendyol operates as an intermediary sales platform for the sales of third-party vendors and operates as a vendor itself by selling its own brands such as TrendyolMilla on the same platform, (ii) interferes with the algorithms on the platform by making adjustments which gives an unfair advantage to its own products, (iii) uses the data obtained within the scope of the marketplace activities to create a marketing strategy for its own brands, and (iv) discriminates among the sellers making sales in its platforms by intervening with the algorithms. In the light of the foregoing, the Board initiated a full-fledged investigation against Trendyol through its decision dated 23 September 2021 and numbered 21-44/650-M.

In this context, the Board, has imposed some measures on Trendyol to be implemented during and after the investigation with its decision dated 30 September 30 and numbered 21-46/669-334. Among the measures to be taken are:

(i) Terminating all kinds of actions, conducts, and practices, including interventions made through algorithms and codes to provide advantage to its own products and services against its competitors and avoiding such practises during the continuation of the investigation process,

(ii) Stopping the transfer and use of all kinds of data obtained and produced through its provision of marketplace activities for its own r other products and services and avoiding such practises during the continuation of the investigation process,

(iii) keeping the parametric and structural changes made on all algorithm models used for product search, seller listing, seller score calculation, etc. on Trendyol platform for at least 8 (eight) years, with versions and undeniable accuracy.

It should be noted that the investigation conducted against Trendyol largely resembled the investigations conducted by the Board against Google based on the allegations that (i) Google abuses its dominant position in the general search services market, by obstructing the activities of its competitors in the online shopping comparison services market and (ii) Google abuses its dominant position in the general search services market by positioning its own local search services in a way to obstruct the activities of other market players. Within the scope of such investigations, the Board determined that Google has been placing the results for which it takes advertisements at the top of the general search results by disrupting the organic results, thus obstructing the activities of undertakings providing shopping and local accommodation services.

It can be said that, especially with the development of the ICT market, the cases where an undertaking enjoying a dominant position in the online markets provides advantages to the services that provide financial earnings to themselves against the activities of their competitors providing services on the same platforms, are under close follow-up of the Board.

You can find the measure decision of the Board here.

Answer

The Food and Beverage sector which includes the production, distribution, sale, and retailing services of food and beverage products, which are the most basic and nondeferrable needs of humanity, and thus can be considered as the building blocks of national economies⁶ , is one of the most vital and strategic sectors. The Food and Beverage Sector is a sub-sector of the manufacturing industry within the scope of the United Nations' 3rd Revision of the International Standard Industrial Classification of All Economic Activities (ISIC Rev. 3)⁷ . Considering the increasing global food demand, an uninterrupted Food and Beverage sector⁸ with the capacity to produce, distribute and sell food and beverages in accordance with international standards is seen as one of the locomotive sectors of the economy.

The Food and Beverage sector has a highly competitive structure due to the clustering of many undertakings in the same or different levels of the production and distribution chain. According to the TGDF Digital Data Panel, which is prepared every year by the Turkish Statistical Institute (“TSI”) based on Foreign Trade Data, in the first 9 months of 2021, exports amounted to 15.9 billion dollars whereas imports amounted to 12.2 billion dollars⁹ in the agriculture, food and beverage sector. In parallel with all these developments, the Authority has resolved decisions and prepared sector reports that will serve as precedents in the Food and Beverage sector in 2021 and has increased its efforts to maintain the competitive structure of the relevant market.

1. The Competition Authority Published Its Decision on Unilever Regarding the Allegations of Violation of Articles 4 and 6 of the Law.

Upon the complaints filed, the Board initiated an investigation against Unilever Sanayi ve Ticaret Türk AŞ (“Unilever”), on 24 July 2020 to determine whether Unilever the manufacturer of Algida branded ice cream products, is in violation of Articles 4 and 6 of the Law no. 4054 by creating de facto exclusivity by preventing the sale of competitor products at final sales points through various practices. In the application, it was alleged that Unilever motivates its final sales point customers to sell a single brand by paying concessions in order to increase the availability of Algida products.

The Board concluded the investigation through its decision dated 18 March 2021 and numbered 21-15/190-80 and determined that Unilever enjoys a dominant position in the industrial ice cream market, fast consumed ice cream market, and at home consumed ice cream market. Accordingly, on the grounds that (i) Unilever continued its activities on the cabin exclusivity and discount systems throughout the 1.5-year investigation period, that previously committed not to continue before the Board, and therefore Unilever abused its dominant position and (ii) created de facto exclusivity with the non-compete obligations included in the agreements executed with Getir Perakende, the Board imposed an administrative fine on Unilever in the amount of 480,217,216 million TRY in total, due to the violation of Articles 4 and 6 of Law No. 4054. In addition to the administrative fine, the Board also imposed regulatory sanctions on Unilever in order to terminate the above mentioned practices.

You can access the Board's decision on the investigation here.

2. Authority Published Its Decision Against 46 Undertakings Operating in Wheat Flour Market.

The Board, through its decisions numbered (i) 19-21/305-M and dated 13 June 2019, (ii) 19-36/540-M and dated 24 October 2019, and (iii) 20-01/5-M and dated 02.01.2020, initiated an investigation to determine whether 46 undertakings operating in the wheat flour market, are in violation of Article 4 of the Law no. 4054 by simultaneously increasing their prices.

During the on-site reviews carried out by the Board, it has been identified that Karadeniz Un Sanayicileri Derneği (the Black Sea Flour Industrialists' Association) (“KUSAD”), which is affiliated to certain undertakings under the inquiry, has held meetings with its members to discuss the sale prices of flour, has regularly collected the price lists containing the wheat flour sales prices from its members after the meetings and has circulated the collected price lists among its members with the purpose of managing the wheat flour prices among the member undertakings. The investigation concluded through Board's decision dated 7 January 2021 and numbered 21-01/18-8 and monetary fines were imposed on 34 undertakings.

You can access the Board's decision on the investigation here.

3. The Authority Concluded Its Investigation Against the Undertakings in the Retail Food and Cleaning Products Market.

The Board, initiated an investigation through its decision dated May 7, 2020 and numbered 20-23/298, against 29 undertakings operating as (i) chain stores engaging the retail of food and cleaning products as well as (ii) the suppliers of chain stores manufacturing and wholesaling of food and cleaning products to examine the pricing behaviours of such undertakings during the COVID-19 outbreak.

Within the scope of the investigation, The Board examined whether the chain stores exchange information to determine retail sales prices through common third parties with which they have vertical relationships i.e. common suppliers. The Board concluded the investigation through its decision dated 28 October 2021 and numbered 21-53/747-360 and determined that (i) the chain markets Yeni Mağazacılık A.Ş., BİM Birleşik Mağazalar A.Ş., CarrefourSA Carrefour Sabancı Ticaret Merkezi A.Ş., Migros Ticaret A.Ş. and Şok Marketler Ticaret A.Ş., have formed an ABC information exchange (“hub and spoke”) cartel through their supplier Savola Gıda ve San. Tic. A.Ş.'s collect-distribute method and (ii) to impose administrative fines on the 6 above mentioned undertakings based on their annual gross revenues of the fiscal year 2020 determined by the Board. Additionally, it has been determined that there is no need to impose administrative fines on the other remaining 23 undertakings that are under investigation.

You can access the final decision statement of the Board here.

4. The Authority Announced that the Investigation Conducted on Coca-Cola is Terminated by Means of Commitment.

The Board, initiated an investigation against Coca Cola Sales and Distribution AŞ (“Coca Cola”) through its decision dated 2 April 2020, based on the allegations that Coca Cola, which operates in the non-alcoholic commercial beverages market under many product categories, violated Law No. 4054 by preventing the sale of competing products at the final sales points.

The basis of this investigation is the Board's decision dated 10 September 2007, which reviewed the non-alcoholic commercial beverages sector in detail. In such decision, the Board has determined that Coca-Cola enjoys a dominant position in the market for carbonated beverages and Coca-Cola to terminate the agreements including exclusive distribution clauses for these products. In addition, various regulations were introduced, such as making 20% of the coolers owned by Coca-Cola available to competitors at the sale points of sale in case of the absence of competitors’ cooler. In this framework, the Board aimed to eliminate competitive problems with the initiation of the investigation in 2020 and imposition of new regulations by taking into consideration the changes that have occurred in the sector during the past 14-years.

During the investigation phase, Coca-Cola benefitted from the Communiqué on Commitment entered into force on 2 September 2021, by the commitment application to eliminate the competitive concerns in the file. Within the scope of the negotiations held during the commitment process, it has been determined that the commitment package proposed by CocaCola is proportional and suitable to the eliminate the competitive concerns, can be fulfilled in a short time, and can be implemented effectively so that it has been decided to terminate the investigation by making commitment package to be binding.

With the announcement dated 8 September 2021 published on its official website, the Board shared the details of the commitment package with the public and re-emphasized that the competitive structure in the still beverage markets is under its review as well.

You can access the comprehensive statement of the Board regarding the commitments made by Coca Cola here.

5. The Authority Announced the Investigation Initiated Against 13 Undertakings Operating in the FMCG Market.

The Board announced on its official website on 3 June 2021 that based on the information and documents obtained and determinations made within the scope of the investigation conducted against the undertakings operating in the retail food and cleaning products market the details of which are explained above, it has initiated an investigation against 13 undertakings, which were not parties to the retail food and cleaning products market investigation.

At first within the scope of the preliminary inquiry, the Board examined whether the producers/suppliers operating in FMCG market, including Red Bull, Şölen Chocolate, Pepsi Cola, Eti Gıda and Beypazarı indirectly intermediates the exchange of competitively sensitive information such as future prices, price transition dates, seasonal activities and campaigns between the supermarket chains; ensures the coordination of the prices and/or price transitions of the supermarket chains; and/or engages in the determination of the resale prices. Upon the strong suspicion that the inquired undertakings have committed the aforementioned practices, the Board has decided to initiate an ex officio investigation against 13 undertakings.

You can access the official announcement of the Board here.

Answer

Upon the complaints filed, the Board initiated an investigation against Unilever Sanayi ve Ticaret Türk AŞ (“Unilever”), on 24 July 2020 to determine whether Unilever the manufacturer of Algida branded ice cream products, is in violation of Articles 4 and 6 of the Law no. 4054 by creating de facto exclusivity by preventing the sale of competitor products at final sales points through various practices. In the application, it was alleged that Unilever motivates its final sales point customers to sell a single brand by paying concessions in order to increase the availability of Algida products.

The Board concluded the investigation through its decision dated 18 March 2021 and numbered 21-15/190-80 and determined that Unilever enjoys a dominant position in the industrial ice cream market, fast consumed ice cream market, and at home consumed ice cream market. Accordingly, on the grounds that (i) Unilever continued its activities on the cabin exclusivity and discount systems throughout the 1.5-year investigation period, that previously committed not to continue before the Board, and therefore Unilever abused its dominant position and (ii) created de facto exclusivity with the non-compete obligations included in the agreements executed with Getir Perakende, the Board imposed an administrative fine on Unilever in the amount of 480,217,216 million TRY in total, due to the violation of Articles 4 and 6 of Law No. 4054. In addition to the administrative fine, the Board also imposed regulatory sanctions on Unilever in order to terminate the above mentioned practices.

You can access the Board's decision on the investigation here.

Answer

The Board, through its decisions numbered (i) 19-21/305-M and dated 13 June 2019, (ii) 19-36/540-M and dated 24 October 2019, and (iii) 20-01/5-M and dated 02.01.2020, initiated an investigation to determine whether 46 undertakings operating in the wheat flour market, are in violation of Article 4 of the Law no. 4054 by simultaneously increasing their prices.

During the on-site reviews carried out by the Board, it has been identified that Karadeniz Un Sanayicileri Derneği (the Black Sea Flour Industrialists' Association) (“KUSAD”), which is affiliated to certain undertakings under the inquiry, has held meetings with its members to discuss the sale prices of flour, has regularly collected the price lists containing the wheat flour sales prices from its members after the meetings and has circulated the collected price lists among its members with the purpose of managing the wheat flour prices among the member undertakings. The investigation concluded through Board's decision dated 7 January 2021 and numbered 21-01/18-8 and monetary fines were imposed on 34 undertakings.

You can access the Board's decision on the investigation here.

Answer

The Board, initiated an investigation through its decision dated May 7, 2020 and numbered 20-23/298, against 29 undertakings operating as (i) chain stores engaging the retail of food and cleaning products as well as (ii) the suppliers of chain stores manufacturing and wholesaling of food and cleaning products to examine the pricing behaviours of such undertakings during the COVID-19 outbreak.

Within the scope of the investigation, The Board examined whether the chain stores exchange information to determine retail sales prices through common third parties with which they have vertical relationships i.e. common suppliers. The Board concluded the investigation through its decision dated 28 October 2021 and numbered 21-53/747-360 and determined that (i) the chain markets Yeni Mağazacılık A.Ş., BİM Birleşik Mağazalar A.Ş., CarrefourSA Carrefour Sabancı Ticaret Merkezi A.Ş., Migros Ticaret A.Ş. and Şok Marketler Ticaret A.Ş., have formed an ABC information exchange (“hub and spoke”) cartel through their supplier Savola Gıda ve San. Tic. A.Ş.'s collect-distribute method and (ii) to impose administrative fines on the 6 above mentioned undertakings based on their annual gross revenues of the fiscal year 2020 determined by the Board. Additionally, it has been determined that there is no need to impose administrative fines on the other remaining 23 undertakings that are under investigation.

You can access the final decision statement of the Board here.

Answer

The Board, initiated an investigation against Coca Cola Sales and Distribution AŞ (“Coca Cola”) through its decision dated 2 April 2020, based on the allegations that Coca Cola, which operates in the non-alcoholic commercial beverages market under many product categories, violated Law No. 4054 by preventing the sale of competing products at the final sales points.

The basis of this investigation is the Board's decision dated 10 September 2007, which reviewed the non-alcoholic commercial beverages sector in detail. In such decision, the Board has determined that Coca-Cola enjoys a dominant position in the market for carbonated beverages and Coca-Cola to terminate the agreements including exclusive distribution clauses for these products. In addition, various regulations were introduced, such as making 20% of the coolers owned by Coca-Cola available to competitors at the sale points of sale in case of the absence of competitors’ cooler. In this framework, the Board aimed to eliminate competitive problems with the initiation of the investigation in 2020 and imposition of new regulations by taking into consideration the changes that have occurred in the sector during the past 14-years.

During the investigation phase, Coca-Cola benefitted from the Communiqué on Commitment entered into force on 2 September 2021, by the commitment application to eliminate the competitive concerns in the file. Within the scope of the negotiations held during the commitment process, it has been determined that the commitment package proposed by CocaCola is proportional and suitable to the eliminate the competitive concerns, can be fulfilled in a short time, and can be implemented effectively so that it has been decided to terminate the investigation by making commitment package to be binding.

With the announcement dated 8 September 2021 published on its official website, the Board shared the details of the commitment package with the public and re-emphasized that the competitive structure in the still beverage markets is under its review as well.

You can access the comprehensive statement of the Board regarding the commitments made by Coca Cola here.

Answer

The Board announced on its official website on 3 June 2021 that based on the information and documents obtained and determinations made within the scope of the investigation conducted against the undertakings operating in the retail food and cleaning products market the details of which are explained above, it has initiated an investigation against 13 undertakings, which were not parties to the retail food and cleaning products market investigation.

At first within the scope of the preliminary inquiry, the Board examined whether the producers/suppliers operating in FMCG market, including Red Bull, Şölen Chocolate, Pepsi Cola, Eti Gıda and Beypazarı indirectly intermediates the exchange of competitively sensitive information such as future prices, price transition dates, seasonal activities and campaigns between the supermarket chains; ensures the coordination of the prices and/or price transitions of the supermarket chains; and/or engages in the determination of the resale prices. Upon the strong suspicion that the inquired undertakings have committed the aforementioned practices, the Board has decided to initiate an ex officio investigation against 13 undertakings.

You can access the official announcement of the Board here.

2021 Turkish Competition Law Bulletin

Statutory Amendments Incompliance With The Europeanunion Competition Law

Communiqué On The Commitments To Be Offered Inpreliminary Inquiries And Investigations Conductedby The Turkish Competition Authority (“authority”)has Been Published.

The “De Minimis” Rule of the European Commission has also entered into force in Turkish Competition Law.

The Block Exemption Market Share Thresholds Regarding Vertical Agreements Have Been Lowered.

Sectoral Inquiries

Preliminary Report on FMCG Retailing Sector Inquiry has been Published.

A Sector Inquiry for Online Advertising Has Been Initiated.

Preliminary Report on E-Marketplace Platforms Sector Inquiry Has Been Published.

Inquiry Report on Financial Technologies in Payment Services Has Been Published.

Board Decisions That Marked The Year 2021

An Investigation Has Been Initiated Against 32 Undertakings Concerning Gentleman's Agreements in the Labour Market.

The Court Ruled That the Board Can Request Information from the Turkish Subsidiaries of Foreign Based Undertakings.

The First Example of Settlement Process in Turkish Competition Law

Board’s First Decision On the Termination of a Preliminary Inquiry by Means of Commitment

Sector Based Developments

Information and Communication Technologies Sector

1. The Board Announced an Ex-officio Investigation Against Facebook and WhatsApp.

2. The Reasons for the Interim Measure Imposed on Facebook and WhatsApp Has Been Published by the Board.

3. The Competition Authority Decided to Impose an Administrative Fine to Google for Abusing Its Dominant Position.

4. The Board Decided Türk Telekomünikasyon and TTNET Is Not in Violation of Article 6 of the Law for the “All Inclusive Campaign”.

5. The Board Imposed an Interim Measure On Trendyol within the Scope of the Ongoing Investigation

Food and Beverage Sector

1. The Competition Authority Published Its Decision on Unilever Regarding the Allegations of Violation of Articles 4 and 6 of the Law.

2. Authority Published Its Decision Against 46 Undertakings Operating in Wheat Flour Market.

3. The Authority Concluded Its Investigation Against the Undertakings in the Retail Food and Cleaning Products Market.

4. The Authority Announced that the Investigation Conducted on Coca-Cola is Terminated by Means of Commitment.

5. The Authority Announced the Investigation Initiated Against 13 Undertakings Operating in the FMCG Market.

Nur Duygu Bozkurt

Selin İvit