In September 2022, the Turkish Competition Board (the "Board") published 26 reasoned decisions, 18 of which concern merger control filings.
The highlight of Turkish competition law developments in September is that the Board concluded its investigations against Allergan and Martı without fines.
Leading e-scooter company chooses commitment mechanism
On 10 August 2022, the Turkish Competition Authority (the "Authority") announced that the Board had launched a full-fledged investigation against Martı, a leading Turkish e-scooter company, to determine whether it abuses its dominant position through exclusionary practices. In September, the Board concluded its investigation by accepting the commitment package proposed by Martı.
The Board shows Digiturk the yellow card
The Authority also announced in September that the Board initiated a preliminary investigation against Digiturk, the leading satellite TV platform in Turkey. According to the announcement, the Board's preliminary investigation concerns allegations that Digiturk uses its sub-broadcasting rights, particularly for "news-related AV content" and "AV content of match highlights/recaps" in a discriminatory manner against other broadcasting institutions.
The Board considers that the alleged behaviour of Digiturk may cause serious and irrevocable harm until its final decision, and therefore interim measures must be taken.
The Board postpones a joint venture in the plasterboard market
According to the Authority's announcement on 27 September, the Board has decided to initiate a Phase II review of the transaction regarding the establishment of a joint venture between Dalsan and the French glass manufacturing company, Saint-Gobain.
The Board considers that the competition concerns related to the transaction warrant a further investigation, therefore the transaction can only be closed after the Board finalises its Phase II review.
Unexpected turns on the hindrance of on-site inspections
The Board's reasoned decision concerning the hindrance of the on-site inspection that took place at the premises of A101, one of the largest retail companies in Turkey, has been published. The Board concluded in a majority decision that there is not enough evidence proving that the on-site inspection was hindered, and thus decided not to impose any administrative fine against A101.
In its reasoned decision, the Board emphasised that to impose administrative monetary fines, it should be proven that employees of the relevant undertaking deleted data after the commencement of the inspection. In this context, the Board states that even if an employee of A101 deleted any data, the timing of such data deletion is not proven unequivocally without the log files indicating such deletion.
However, two members of the Board voted against the final decision. In general, they underline that while there was no concrete evidence provided by A101 showing that the employees removed the application before the on-site inspection, the conflicting statements regarding the existence of messages on the WhatsApp application and the behaviour of A101 employees can be deemed sufficient to prove a possible data deletion in accordance with the previous decisions of the Board, in which the Board imposed monetary fines even in the absence of log files as proof.
The Board scrutinises the exchange of information on financial markets
On 9 September, the Authority published the Board's decision on the alleged uncompetitive behaviour of several financial institutions. In its decision, the Board assessed that the coordination of financial manipulations such as front-running or stop-loss hunting may constitute a violation of Turkish competition law through the exchange of competitively sensitive information.
In its decision, the Board suggests that due to the nature of financial markets, a possible violation of competition law is more unlikely than other markets. However, the exchange of information regarding the mentioned subjects carries a high risk of a potential infringement if the information exchange (i) is continuous; (ii) leads to coordinated behaviour among competitors; (iii) gives the impression of a planned action; (iv) involves information on high-value transactions; (v) is related to a recent transaction; and (vi) is followed by a competitor trader that adopts the said transaction in a similar manner.
Türk Telekom is cleared of allegations concerning abuse of dominant position
The Board published its reasoned decision involving Turkey's state-owned telecommunications company, Türk Telekom. It was alleged that Türk Telekom favoured its subsidiary TTNET at the expense of its competitors through exclusionary practices such as the refusal of technical infrastructure or unreasonable rejections of the applications regarding subscribers. Following an extensive analysis, the Board concluded that such rejections are exceptional instances when compared to the high amount of infrastructure allocation made by Türk Telekom and that they are incapable of disrupting competition in the relevant market.
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