Introduction

Article 9(4) of the Law No. 4054 on the Protection of Competition (the "Competition Law"), provides that the Turkish Competition Board (the "Board") can implement interim measures on investigated undertakings in cases "where serious and irreparable damages are likely to occur until the final decision is taken." This had been a rather dormant provision until the Board started to actively use it within the last few years. Indeed, in its earlier decisions, the Board had resorted to interim measures only in exceptional cases and mostly rejected the complainants' interim measure requests on the grounds that the investigated conduct does not result in serious and irreparable damages.

However, the Board's approach has significantly changed in recent years, especially in investigations concerning digital markets. Starting with its interim measure decision1 in 2020 regarding the landmark investigation on FMCG retailers which ended with a record-breaking monetary fine, the Board has rendered four other interim measure decisions all of which concerned technology companies in a short period of four years.2

Interim Measures under Turkish Competition Law

According to Article 9(4) of the Competition Law, the fundamental criterion for imposing interim measures is the likeliness of serious and irreparable damages. Also, this provision further states that interim measures are intended "to maintain the situation before the infringement" and must not exceed "the scope of the final decision."

In this regard, the applicable legislation establishes a two-step assessment to impose interim measures. First, it must be likely that the investigated conduct will lead to serious and irreparable damages to competition before the Board renders its final decision. In other words, to rule for an interim measure decision, the Board must primarily establish that the damages could not be adequately addressed if the implementation of such measures would have to wait until the Board's final decision. Secondly, interim measures should be limited to preserving the competitive landscape that existed before the alleged infringements occurred. This means that such measures should be confined to what is essential for safeguarding the market conditions preceding the alleged infringement.

The Board's Interim Measure Decisions in Digital Markets

Similar to the European Commission, the Turkish Competition Authority (the" TCA") has begun to closely monitor the digital markets in the past few years. As part of its recent scrutiny towards technology companies, the Board rendered consecutive interim measure decisions against players operating in different digital markets.

When compared to conventional markets, digital markets are more prone to abuse of dominance cases particularly due to the network effects and significant entry barriers that the market characteristics bring along. Due to the nature of digital markets, the Board considers a rapid intervention is necessary to prevent irreparable damages. Also, the condition of "serious and irreparable harm to competition" is easier to be fulfilled in digital markets since network effects may accelerate the negative results of an anti-competitive conduct. Therefore, the Board considers interim measures as a useful tool to quickly intervene with alleged abuse of dominance conduct in digital markets.

For example, in 2021, the Board adopted an important interim measure decisions against Facebook, one of the six initial gatekeepers designated by the European Commission. The Board evaluated practices of Facebook Inc, Facebook Ireland Ltd, WhatsApp Inc, and WhatsApp LLC (together "Facebook"), and rendered a landmark decision in the intersection of competition and personal data protection laws.3 On 4 January 2021, WhatsApp released a notification regarding changes to its privacy policy, which mandated WhatsApp users to commence sharing data with other Facebook entities starting from 8 February 2021. Seven days later, on 11 January 2021, the Board decided to launch an investigation on Facebook to determine whether such commercial strategy constitutes an act of abuse of dominance.

With this decision, the Board also adopted interim measures on Facebook, stating that the updated policy which mandates data sharing could cause irreparable damages before the Board's final decision. According to the Board, revoking these new terms after a full investigation would fail to reverse the advantages gained by other Facebook entities from accessing WhatsApp user data. Accordingly, the Board obliged Facebook to (i) cease the terms allowing the use of WhatsApp user data for other services as of 8 February 2021 and (ii) notify its users about the renewed terms, regardless of whether they have accepted the terms allowing the use of WhatsApp user data for other services.

The Board's interim measure decisions in digital markets continued in the past couple of years following its Facebook and Trendyol decisions in 2021. In 2022, the Board imposed interim measures on Krea İçerik Hizmetleri ve Prodüksiyon Anonim Şirketi ("Krea"), which operates under the Digiturk brand, the authorized broadcaster of the Turkish Super League.4 Within the scope of its review, the Board investigated the allegation that Krea offers the Turkish Super League and Turkish First Division League football matches' exclusive broadcasting and sub-broadcasting rights to other broadcasting organizations in a discriminatory manner.

During the preliminary investigation, the Board determined that certain broadcasters increased their ratings by broadcasting "news related highlights" and "extensive match highlights" earlier than others and thus obstructed other broadcasters' activities. As a result, the Board decided to impose an interim measure to Krea on the grounds that serious and irreparable damages may occur until the adoption of the final decision. Accordingly, the Board obligated Krea not to allow any of these broadcasters to broadcast the highlights before specific periods of time, i.e., grant simultaneous sub-broadcasting rights to all broadcasters for each football match in these leagues, ensuring equal access for all broadcasters.

More recently, in 2023, the Board rendered an interim measure on D Elektronik Şans Oyunları ve Yayıncılık Anonim Şirketi ("Nesine"), one of the most popular online betting platforms in Turkey. The Board initiated an investigation regarding the exclusive advertising services agreement between Nesine and Maçkolik İnternet Hizmetleri Anonim Şirketi ("Maçkolik"), a platform providing live scores and statistical information on various sports events. The agreement concerned the exclusive rental of ad spaces on Maçkolik's website by Nesine, which prevented Maçkolik from renting its ad spaces to Nesine's competitors.

During the investigation stage, the Board concluded that even if the contractual exclusivity between Nesine and Maçkolik is removed, Maçkolik is still one of the largest digital sports platforms and such agreement would exclude Nesine's competitors' de facto access for using the advertising space on the Maçkolik platform. In this regard, the Board imposed an interim measure decision to remove the clauses from the agreements such as the exclusive rental of ad spaces and the "click quota" restrictions imposed on Maçkolik.

Judicial Review of Interim Measures

The Board's interim decisions are subject to judicial review. In instances of excessive intervention beyond what is necessary, the Board's interim decisions may be annulled through judicial review on the grounds that they do not adhere to the principle of proportionality.

Ankara Administrative Court's (the "Court") annulment decision on the Board's interim measure decision against DSM Grup Danışmanlık İletişim ve Satış Ticaret Anonim Şirketi ("Trendyol"), one of the largest e-commerce platforms in Turkey, is a good example. In its investigation against Trendyol, the Board evaluated whether Trendyol abused its dominant position in the market for multi-category marketplaces by interfering with algorithms and using third-party sellers' data to favor its own brands/activities. Before rendering its final decision, the Board imposed interim measures requiring Trendyol to (i) cease its self-preferencing practices, (ii) not share any data obtained from marketplace activities to favor its own products/services, and (iii) store the parametric and structural changes made through algorithms, source codes and user logs for a term of eight years.5

However, the Court annulled the interim measure requiring Trendyol to cease any practices that discriminate between sellers on the grounds that (i) the Board did not assess whether the sellers in Trendyol's platform are equal and that there are no sufficient information/documentation showing that they are, (ii) different practices may be applied for sellers which are in different status, and (iii) there is no final decision stating that Trendyol abused its dominant position through discriminating between its own products and that of the sellers.6

In addition, the Court partially annulled the interim measure imposing an obligation on Trendyol to store the parametrical and structural changes made through algorithms, source codes and user logs for a term of eight years. The Court indicated that although there is no explicit provision governing the interim measures' validity period, interim measures can only be valid from the date of the Board's interim measure decision until the date of the final decision.

Accordingly, the Court's decision implies that some of the interim measures imposed by the Board exceeded the boundaries of preserving the competitive landscape that existed before the alleged infringements and an eight year-long obligation that also covers the period after the adoption of a final decision is not a proportionate measure.

Conclusion

Despite the lack of interim measures in its earlier decisional practice, the need for a quick response in digital markets prompted the Board to gradually increase its intervention by interim measure decisions. The Board's increasing number of interim measure decisions in the last few years demonstrate that they are a useful enforcement tool to address the potential negative effects on competition in digital markets at an early stage. Considering that the Board's scrutiny towards digital markets will continue, the Board will eagerly impose interim measures in its upcoming investigations regarding digital markets to ensure rapid intervention. On the other hand, as demonstrated by the annulled Trendyol interim measure decision, the Board must not overlook the proportionality principle when determining the interim measures.

Footnotes

1. The Board's interim measure decision on FMCG Retailers dated 7 May 2020 and numbered 20-23/298-145

2. The Board's interim measure decisions regarding (i) Nesine dated 15 June 2023 and numbered 23-27/520-176, (ii) Krea dated 29 September 2022 and numbered 22-44/652-281, (iii) Trendyol dated 30 September 2021 and numbered 21-46/669-334 and (iv) Whatsapp dated 11 January 2021 and numbered 21-02/25-10

3. The Board's decision dated 11 January 2021 and numbered 21-02/25-10

4. The Board's decision dated 29 September 2022 and numbered 22-44/652-281

5. The Board's decision dated 30 September 2021 and numbered 21-46/669-334

6. Ankara 9th Administrative Court's decision dated 25 May 2022 and numbered 2021/2069 E. and 2022/1157 K.

© Kolcuoğlu Demirkan Koçaklı Attorneys at Law 2020

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