Turkey: Recent Cases

Last Updated: 28 May 2019

The Board approved the transaction regarding the establishment of a joint venture between Toyota Corporation and Panasonic Corporation which will be engaged in the R&D, manufacture, and sale of prismatic automotive lithium-ion batteries as well as R&D into other automotive battery technologies (19-19/272-119; 23.5.2019 ).

The Turkish Competition Board ("Board") approved the transaction regarding the establishment of a joint venture between Toyota Corporation and Panasonic Corporation which will be engaged in the R&D, manufacture, and sale of prismatic automotive lithium-ion batteries as well as R&D into other automotive battery technologies.

The Board approved the transaction regarding the acquisition of sole control over Celgene Corporation by Bristol-Myers Squibb Company (19-19/269-117; 23.5.2019).

The Turkish Competition Board ("Board") approved the transaction regarding the acquisition of sole control over Celgene Corporation by Bristol-Myers Squibb Company.

The Board approved the transaction regarding the acquisition of sole control over Electronics for Imaging, Inc. by Siris Capital Group, LLC through East Private Holdings II, LLC and East Merger Sub, Inc. (19-19/263-115; 23.5.2019).

The Turkish Competition Board ("Board") approved the transaction regarding the acquisition of sole control over Electronics for Imaging, Inc. by Siris Capital Group, LLC through East Private Holdings II, LLC and East Merger Sub, Inc.

The Board approved the transaction regarding the acquisition of (i) sole control of Boyner Büyük Mağazacılık A.Ş. and Altınyıldız Tekstil ve Konfesksiyon A.Ş. which are currently under the joint control of Mayhoola for Investments LLC and Boyner Holding A.Ş. and (ii) the ownership of brand Altınyıldız Classics and its sub-brands by Boyner Holding A.Ş. (19-22/344-157; 20.6.2019).

The Turkish Competition Board ("Board") approved the transaction regarding the acquisition of (i) sole control of Boyner Büyük Mağazacılık A.Ş. and Altınyıldız Tekstil ve Konfesksiyon A.Ş. which are currently under the joint control of Mayhoola for Investments LLC and Boyner Holding A.Ş. and (ii) the ownership of brand Altınyıldız Classics and its sub-brands by Boyner Holding A.Ş.

The Board approved the transaction regarding the acquisition of sole control over Boyner Perakende ve Tekstil Yatırımları A.Ş. which was under the joint control of Mayhoola for Investments LLC and Boyner Holding A.Ş. by Mayhoola For Investments LLC. (19-22/343-156; 20.6.2019).

The Turkish Competition Board ("Board") approved the transaction regarding the acquisition of sole control over Boyner Perakende ve Tekstil Yatırımları A.Ş. which was under the joint control of Mayhoola for Investments LLC and Boyner Holding A.Ş. by Mayhoola for Investments LLC.

The Board approved the transaction regarding the acquisition of sole control over WYG plc. by Tetra Tech, Inc. through Tetra Tech UK Holdings Limited (19-22/340-154; 20.6.2019).

The Turkish Competition Board ("Board") approved the transaction regarding the acquisition of sole control over WYG plc. by Tetra Tech, Inc. through Tetra Tech UK Holdings Limited.

The Board approved the transaction regarding the acquisition of sole control by Elbit Systems of America, LLC over the night vision business of Harris Corporation and Eagle Technology, LLC, through a transfer of assets (19-22/328-146; 20.6.2019).

The Turkish Competition Board ("Board") approved the transaction regarding the acquisition of sole control by Elbit Systems of America, LLC over the night vision business of Harris Corporation and Eagle Technology, LLC, through a transfer of assets.

The Board conditionally approved the transaction regarding the acquisition of sole control by Harris Corporation over L3 Technologies, Inc. within the framework of the commitments submitted to the Turkish Competition Authority (19-22/327-145; 20.6.2019).

The Turkish Competition Board ("Board") approved the transaction regarding the acquisition of sole control by Harris Corporation over L3 Technologies, Inc. within the framework of the commitments submitted to the Turkish Competition Authority.

The Board approved the transaction regarding the acquisition of joint control by Toyota Financial Services Corporation and Mazda Motor Corporation over SMM Auto Finance, Inc. ( 19-23/359-162; 27.6.2019).

The Turkish Competition Board ("Board") approved the transaction regarding the acquisition of joint control by Toyota Financial Services Corporation and Mazda Motor Corporation over SMM Auto Finance, Inc.

The Board approved the transaction regarding the acquisition of all of the issued and outstanding capital stock of Lord Corporation by Hannifin Corporation through Erie Merger Sub, Inc. (19-24/367-165; 4.7.2019).

The Turkish Competition Board ("Board") approved the transaction regarding the acquisition of all of the issued and outstanding capital stock of Lord Corporation by Hannifin Corporation through Erie Merger Sub, Inc.

The Board approved the transaction regarding the acquisition of joint control over Macquarie AirFinance Limited and Macquarie AirFinance Group Limited by Stichting Depositary PGGM Infrastructure Funds (19-24/372-170; 4.7.2019).

The Turkish Competition Board ("Board") approved the transaction regarding the acquisition of joint control over Macquarie AirFinance Limited and Macquarie AirFinance Group Limited by Stichting Depositary PGGM Infrastructure Funds.

The Board approved the transaction regarding the acquisition of a newly created full-function joint venture by the subsidiaries of Rockwell Automation, Inc., namely Rockwell Automation Diamond Holdings, Inc. and Rockwell Automation Diamond Foreign Holdings, Inc. and the subsidiaries of Schlumberger Limited, namely Schlumberger Technology Corporation Cameron International Corporation and Schlumberger B.V. (19-24/368-166; 4.7.2019).

The Turkish Competition Board ("Board") approved the transaction regarding the acquisition of a newly created full-function joint venture by the subsidiaries of Rockwell Automation, Inc., namely Rockwell Automation Diamond Holdings, Inc. and Rockwell Automation Diamond Foreign Holdings, Inc. and the subsidiaries of Schlumberger Limited, namely Schlumberger Technology Corporation Cameron International Corporation and Schlumberger B.V.

The Board approved the transaction regarding the acquisition of certain amount of shares of citizenM Holding B.V. which was under the joint control of KRC Capital B.V. and Stichting Pensioenfonds ABP by GIC Private Limited (19-24/376-172; 4.7.2019).

The Turkish Competition Board ("Board") approved the transaction regarding the acquisition of certain amount of shares of citizenM Holding B.V. which was under the joint control of KRC Capital B.V. and Stichting Pensioenfonds ABP by GIC Private Limited.

The Board approved the transaction regarding the acquisition of sole control by Natura Cosméticos S.A over Avon Products, Inc. (19-26/413-182; 24.7.2019).

The Turkish Competition Board ("Board") approved the transaction regarding the acquisition of sole control by Natura Cosméticos S.A over Avon Products, Inc.

The Board approved the transaction regarding the acquisition of joint control by Sumitomo Corporation over Nippon Steel Corporation's subsidiary, namely Standart Steel Holdings Inc. (19-26/380-175; 24.7.2019).

The Turkish Competition Board ("Board") approved the transaction regarding the acquisition of joint control by Sumitomo Corporation over Nippon Steel Corporation's subsidiary, namely Standart Steel Holdings Inc.

The Board approved the transaction regarding the acquisition of sole control by KPS Capital Partners, LP over the subsidiaries of Colfax Corporation operating in air and gas handling sector (19-26/383-178; 24.7.2019).

The Turkish Competition Board ("Board") approved the transaction regarding the acquisition of sole control by KPS Capital Partners, LP over the subsidiaries of Colfax Corporation operating in air and gas handling sector.

The Board approved the transaction regarding the acquisition of sole control over Da Vinci Group B.V by Petroliam Nasional Berhad through PETRONAS Chemicals Group Berhad (19-26/384-179; 24.7.2019).

The Turkish Competition Board ("Board") approved the transaction regarding the acquisition of sole control over Da Vinci Group B.V by Petroliam Nasional Berhad through PETRONAS Chemicals Group Berhad.

The Board approved the transaction regarding the acquisition of sole control over Avon Products, Inc. by Natura Cosméticos S.A. (19-26/413-182; 24.7.2019)

The Turkish Competition Board ("Board") approved the transaction regarding the acquisition of sole control over Avon Products, Inc. by Natura Cosméticos S.A.

The Board approved the transaction regarding the acquisition of joint control of Standard Steel Holdings Inc. which is a subsidiary of Nippon Steel Corporation by Sumitomo Corporation (19-26/380-175; 24.7.2019)

The Turkish Competition Board ("Board") approved the transaction regarding the acquisition of joint control of Standard Steel Holdings Inc. which is a subsidiary of Nippon Steel Corporation by Sumitomo Corporation.

The Board approved the transaction regarding the acquisition of sole control of Colfax Corporation's subsidiaries operating in air and gas handling sector by KPS Capital Partners, LP

The Turkish Competition Board ("Board") approved the transaction regarding the acquisition of sole control of Colfax Corporation's subsidiaries operating in air and gas handling sector by KPS Capital Partners, LP.

The Board has pronounced its final decision on the full-fledged investigation conducted against Tirsan Kardan Sanayi ve Ticaret A.Ş. and Tiryakiler Yedek Parça Sanayi ve Ticaret A.Ş. (19-19/283-121; 23.05.2019).

The Turkish Competition Board ("Board") recently pronounced its final decision regarding the full-fledged investigation conducted against the economic entity comprised of Tirsan Kardan Sanayi ve Ticaret A.Ş. and Tiryakiler Yedek Parça Sanayi ve Ticaret A.Ş. in order to determine whether it has violated Article 6 of the Law No. 4054 on the Protection of Competition ("Law No. 4054") by preventing the entrance of the competitors to the market.

Through its meeting dated 23.05.2019 and its decision numbered 19-19/283-121, the Board has decided that Tirsan Kardan Sanayi ve Ticaret A.Ş. and Tiryakiler Yedek Parça Sanayi ve Ticaret A.Ş. did not violate Article 6 of the Law No. 4054, and therefore did not impose any administrative monetary fines on the relevant undertakings under Article 16 of the Law No. 4054.

The Board pronounced its final decision on the full-fledged investigation conducted against Maysan Mando Otomotiv Parçaları San. ve Tic. Ltd. Şti. (20.6.2019; 19-22/353-159)

Further to the annulment of the Turkish Competition Board's ("Board") decision dated 18.02.2016 and numbered 16-05/107-48 related to the allegation that Maysan Mando Otomotiv Parçaları San. ve Tic. A.Ş refused to supply products to the complainant, coordinated its activities with the complainant's competitors in order to exclude the complainant from the market and thus, restricted competition by the decision of 15th Administrative Court of Ankara dated 25.10.2017 and numbered E: 2016/3742, K: 2017/2794, the Board re-evaluated the case by initiating a full-fledged investigation and assessed whether the relevant undertaking violated the Article 4 of the Law No. 4054 on the Protection of Competition ("Law No. 4054") through resale price maintenance.

In light of all the evidences, information and documents collected, investigation report and written defences and statements provided during the oral hearing meeting, the Board decided unanimously in its meeting date 20.06.2019 and decision numbered 19-22/353-159 that;

  1. The dealership agreements concluded between Maysan Mando Otomotiv Parçaları San. ve Tic. A.Ş and its dealers are within the scope of the Article 4 of the Law No. 4054,
  2. The said agreements would not benefit from the block exemption provided under the Block Exemption Communiqué No. 2017/3 for Vertical Agreements in the Motor Vehicle Sector,
  3. As the said agreements does not comply with the conditions provided under Article 5 of the Law No. 4054, would not benefit from an individual exemption,
  4. Further to the revision of the relevant agreements in compliance with the general conditions provided under Article 5 of the Block Exemption Communiqué No. 2017/3 for Vertical Agreements in the Motor Vehicle Sector and the amendment of the non-complete obligation which do not exceed five years that the said agreements could benefit from the exemption provided under the Communiqué in case the said revisions are completed within 90 days of the notification of the reasoned decision and submitted to the Competition Authority,
  5. Maysan Mando Otomotiv Parçaları San. ve Tic. A.Ş violated the Article 4 of the Law No. 4054 through determining the resale prices of dampers,
  6. Therefore, the Board decided to impose administrative monetary fine over the annual turnover determined by the Board for the financial year of 2018 to Maysan Mando Otomotiv Parçaları San. ve Tic. A.Ş equivalent to 0.75% of its annual gross income pursuant to Article 16(3) of Law No. 4054 and Articles 5(1)(b) and 5(2) of "Regulation on Monetary Fines for Restrictive Agreements, Concerted Practices, Decisions and Abuses of Dominance",
  7. Maysan Mando Otomotiv Parçaları San. ve Tic. A.Ş did not violate Article 6 of the Law No. 4054 by refusal to provide product to the complainant.

The Board pronounced its final decision on the full-fledged investigation conducted against Istanbul Customs Brokers Association (23.05.2019; 19-19/283-121)

The Turkish Competition Board ("Board") recently pronounced its final decision regarding the full-fledged investigation conducted against Istanbul Customs Brokers Association in order to determine whether it has violated Article 4 of the Law No. 4054 on the Protection of Competition ("Law No. 4054").

Through its meeting dated 23.05.2019 and its decision numbered 19-19/283-121, the Board has decided that Istanbul Customs Brokers Association has violated the Article 4 of the Law No. 4054 by submitting offers to competitors' customers and by taking the decision of the association of undertakings to determine sales conditions though the advertisement ban and thus, decided to impose an administrative monetary fine to the relevant undertaking.

The Board launched a full-fledged investigation against Mey İçki San. ve Tic. A.Ş. (30.05.2019; 19-20/288-M)

Competition Board, upon the decision of the 13th Chamber of the High State Court, reassessed the applications including the allegations that (i) Mey İçki San. ve Tic. A.Ş. aggravates its competitors' activities in the market, (ii) agreements it signed with on-trade points include exclusivity and (iii) Mey İçki puts pressure on sales points for them to not sell competitor products.

The Board has previously examined the relevant conducts of Mey İçki Mey İçki San. ve Tic. A.Ş. in the preliminary investigation conducted upon the said complaints and decided to reject the complaints and not to initiate a full-fledged investigation against Mey İçki on 17.11.2011 (11-57/1476-532). However, 13th Chamber of the High State Court annulled the relevant decision of the Board (27.11.2018, E. 2012/429, K: 2018/3352).

The Board: (i) discussed the information and documents contained in the case file during its meeting of May 30, 2019 and (ii) decided to initiate a full-fledged investigation against Mey İçki San. ve Tic. A.Ş. to determine as to whether it violated Article 6 of Law No. 4054 considering the points addressed in the relevant court decision (19-20/288-M).

The Board launched a full-fledged investigation against 6 Undertakings Operating in the Market for Hot Air Balloon-Paragliding Management and Tourism Agency in the Pamukkale District (23.05.2019; 19-19/275-M)

The Turkish Competition Board ("Board") has concluded the preliminary investigation launched ex-officio in order to determine whether Hot Air Balloon-Paragliding Management and Tourism Agencies by establishing joint sales and reservation channels violated the Law No. 4054 on the Protection of Competition ("Law No. 4054").

The Board found that the relevant information, documents and findings are serious and adequate, and through its meeting dated 23.05.2019 and decision numbered 19-19/275-M decided to launch an investigation to the undertakings listed below in order to determine whether the relevant undertakings violated the Article 4 and Article 6 of Law No 4054:

  • Anadolu Balonculuk Havacılık Turizm Reklamcılık Danışmanlık Ltd. Şti.
  • Denizli Havacılık Turizm Ticaret Ltd. Şti.
  • Elis Balonculuk Havacılık ve Eğitim Turizm Ticaret Ltd. Şti.
  • Eylül Havacılık Turizm Ticaret Ltd. Şti.
  • Pamukkale Balonculuk Havacılık Turizm Reklamcılık Organizasyon Petrol San. ve Tic. Ltd. Şti.
  • Pamukkale Birlik Online Turizm ve Ticaret A.Ş.

The Board launched a full-fledged investigation against Novartis Sağlık Gıda ve Tarım Ürünleri San. ve Tic. A.Ş. and Roche Müstahzarları San. A.Ş. (13.06.2019; 19-21/307-M)

The Turkish Competition Board ("Board") has concluded the preliminary investigation launched in order to assess the allegation on whether Novartis Sağlık Gıda ve Tarım Ürünleri San. ve Tic. A.Ş. and Roche Müstahzarları San. A.Ş. by spreading the use of Lucentis, which is more expensive drug among the drugs used in eye diseases such as the Altuzan and Lucentis drugs violated the Article 4 of the Law No. 4054 on the Protection of Competition ("Law No. 4054").

The Board found that the relevant information, documents and findings are serious and adequate, and through its meeting dated 13.06.2019 and decision numbered 19-21/307-M decided to launch an investigation to the undertakings listed below in order to determine whether the relevant undertakings violated the Article 4 of Law No 4054:

  • Novartis Sağlık Gıda ve Tarım Ürünleri San. ve Tic. A.Ş.
  • Roche Müstahzarları San. A.Ş.

The Board launched a full-fledged investigation against 12 Undertakings Operating at Wheat Flour Sector (13.06.2019; 19-21/305-M)

The Turkish Competition Board ("Board") has concluded the preliminary investigation launched in order to assess the allegation on whether the undertakings operating at wheat flour engaged in agreement to increase the prices.

The Board found that the relevant information, documents and findings are serious and adequate, and through its meeting dated 13.06.2019 and decision numbered 19-21/305-M decided to launch an investigation to the undertakings listed below in order to determine whether the relevant undertakings violated the Article 4 of the Law No. 4054 on the Protection of Competition ("Law No. 4054"):

  1. Aksu Gıda İhtiyaç Maddeleri Ticaret ve Sanayi Ltd. Şti.
  2. Aydıngüler Gıda Sanayi ve Ticaret A.Ş.
  3. Bafra Un Yem Gıda San. ve Tic A.Ş.
  4. Birsan Birlik Gıda San. ve Tic. A.Ş.
  5. Dayıoğlu Un Gıda Sanayi ve Ticaret Ltd. Şti.
  6. Gözeli Yem Gıda Tar. Hayv. Ürt. Nak. San. ve Tic. Ltd. Şti.
  7. Güneydoğu Un Sanayicileri Derneği
  8. Kozlu Gıda İmalat Sanayi Ticaret ve Taşımacılık A.Ş.
  9. Nihoruz Gıda San. Tic. A.Ş.
  10. Özmercan Kardeşler Gıda İnş. Nak. San. ve Tic. Ltd. Şti.
  11. Ulusoy Un Sanayi ve Ticaret A.Ş.
  12. Unsan Un Sanayi ve Ticaret A.Ş.

The Board launched a full-fledged investigation against Natural Gas and Mechanical Installation Firms Solidarity Association of Van (20.06.2019; 19-22/339-M) The Turkish Competition Board ("Board") has concluded the preliminary investigation conducted in order to assess the allegation on whether Natural Gas and Mechanical Installation Firm Solidarity Association of Van determining prices.

The Board found that the relevant information, documents and findings are serious and adequate, and through its meeting dated 20.06.2019 and decision numbered 19-22/339-M decided to launch an investigation to the undertakings listed below in order to determine whether Natural Gas and Mechanical Installation Firm Solidarity Association of Van violated the Article 4 of the Law No. 4054 on the Protection of Competition ("Law No. 4054"):

The Board launched a full-fledged investigation against D-Market Elektronik Hizmetleri ve Ticaret A.Ş. and Anka Mobil Tedarik A.Ş. (20.06.2019; 19-22/326-M)

The Turkish Competition Board ("Board") has concluded the preliminary investigation conducted in order to assess the allegation on whether D-Market Elektronik Hizmetleri ve Ticaret A.Ş. and Anka Mobil Tedarik A.Ş. through most favoured nation clause, discrimination, restriction of intra-brand competition, refusal to supply product and resale price maintenance violated the Law No. 4054 on the Protection of Competition ("Law No. 4054").

The Board found that the relevant information, documents and findings obtained during the preliminary investigation are serious and adequate, and through its meeting dated 20.06.2019 and decision numbered 19-22/326-M decided to launch an investigation to the undertakings listed below in order to determine whether the relevant undertakings violated the Law No. 4054:

  • Anka Mobil Tedarik A.Ş.
  • DMarket Elektronik Hizmetleri ve Ticaret A.Ş.

The Board launched a full-fledged investigation against Turkish Travel Agencies Foundation (27.06.2019; 19-23/360-M)

The Turkish Competition Board ("Board") has concluded the preliminary investigation conducted in order to assess the allegation on whether the Turkish Travel Agencies Foundation through applications and decisions regarding the distribution of the pilgrimage quota and determination of the guarantees of the agencies performing the pilgrimage violated the Article 4 of the Law No. 4054 on the Protection of Competition ("Law No. 4054").

The Board found that the relevant information, documents and findings obtained during the preliminary investigation are serious and adequate, and through its meeting dated 27.06.2019 and decision numbered 19-23/360-M decided to launch an investigation in order to determine whether the Turkish Travel Agencies Foundation violated the Article 4 of the Law No. 4054.

The Board launched a full-fledged investigation against Biletix Bilet Dağıtım Basım Ve Ticaret A.Ş. (20.06.2019; 19-22/341-M)

The Turkish Competition Board ("Board") has concluded the preliminary investigation conducted in order to assess the allegation on whether Biletix Bilet Dağıtım Basım Ve Ticaret A.Ş. by way of excessive pricing through imposition of additional fees on ticket sales such as service fee, transaction fee and delivery fee and exclusivity agreements signed with promoters violated the Law No. 4054 on the Protection of Competition ("Law No. 4054").

The Board found that the relevant information, documents and findings obtained during the preliminary investigation are serious and adequate, and through its meeting dated 20.06.2019 and decision numbered 19-22/341-M decided to launch an investigation in order to determine whether Biletix Bilet Dağıtım Basım Ve Ticaret A.Ş. violated the Law No. 4054.

The Board launched a full-fledged investigation against the Turkish Pharmacists Association (24.07.2019; 19-26/390-M)

The Turkish Competition Board ("Board") has concluded the preliminary investigation conducted in order to assess the allegation on whether the Turkish Pharmacists Association by determining the purchase conditions of pharmacies separately from the conditions of the market violated the Article 4 of the Law No. 4054 on the Protection of Competition ("Law No. 4054").

The Board found that the relevant information, documents and findings obtained during the preliminary investigation are serious and adequate, and through its meeting dated 24.07.2019 and decision numbered 19-26/390-M decided to launch an investigation in order to determine whether the Turkish Pharmacists Association violated the Article 4 of the Law No. 4054.

The Turkish Competition Board published its reasoned decision on an additional investigation on whether Turkcell İletişim Hizmetleri A.Ş. has violated the Law No. 4054 on the Protection of Competition through resale price maintenance and exclusivity practices (19-03/23-10; 10.01.2019). The additional assessment has been carried out in order to implement the decision of the 13th Chamber of the Council of State (16.10.2017; E. 2011/4560, K. 2017/2573) which annulled a certain part of the Board's decision dated 06.06.2011 and numbered 11-34/742-230. ("Article published in Concurrences (10 January 2019, e-Competitions Bulletin January 2019, Art. N° 91155), www.concurrences.com)

Background

The Turkish Competition Board ("Board") has recently published its reasoned decision regarding an additional investigation on whether Turkcell İletişim Hizmetleri A.Ş. ("Turkcell") infringed the Law No. 4054 on the Protection of Competition ("Law No. 4054") through resale price maintenance ("RPM") ("Turkcell II"). This additional investigation was opened in order to implement the decision of the 13th Chamber of the Council of State (the "Court") which partially overruled the Board's decision on June 6, 2011 (decision no: 11-34/742-230, "Turkcell I").

In Turkcell I, the Board investigated allegations against Turkcell concerning RPM regarding prepaid cards under Article 4 of the Law No. 4054 and de facto exclusivity obligation upon sub-dealers under Article 6. The Board ultimately dismissed the RPM allegation and decided against an Article 4 infringement. The Board however found Turkcell dominant in the markets for "GSM services" and "the wholesale and retail sale of sim cards, credit vouchers cards and digital credit vouchers, activation and other user services". The Board also decided that Turkcell abused its dominance and imposed an administrative monetary fine on the ground that Turkcell indeed imposed de facto exclusivity on its sub-dealers by interfering with their signboard choices, decoration and other sale practices and preventing competitors to be included in the sub-dealer channel.

One of Turkcell's sub-dealers, Doğan Dağıtım Satış Pazarlama ve Matbaacılık Ödeme Aracılık ve Tahsilat Sistemleri A.Ş, brought a legal action against the decision before the Court. The Court annulled the Board's Turkcell I decision regarding the finding that Turkcell had not violated Article 4 of the Law No. 4054 through RPM. The Court held that there was ample evidence proving that Turkcell had set the retail price of credit vouchers sold by distributors, dealers and sub-dealers. Further the Board emphasized the Board's finding that Turkcell was dominant with a market share over 60% and RPM by dominant firms would infringe Article 4.

In order to comply with the Court's decision, the Board initiated an additional investigation against Turkcell under Article 4.

Turkcell II Decision

The Board did not re-evaluate in detail whether the evidence indeed proved an Article 4 infringement but simply referred to the Court's assessment on this evidence. The Board rather emphasized its statutory obligation under the Law No. 2577 on the Administrative Judiciary Procedure to comply with the Court's decision.

In particular, the Board cited the Court's assessment on the documents such as tables prepared by Turkcell to set the profit margins for all levels of the supply chain; detailed price tables including the sale price of Turkcell, distributors, dealers and sale to the final customer; internal correspondence which was considered as supporting evidence for an RPM and findings that Turkcell applied fixed prices prior to the Authority's investigation. The Board further rejected Turkcell's arguments that the conditions for RPM had not been met and the prices in the evidence had only been recommended prices; and stated that the Court considered the evidence in the filing sufficient for proving RPM and the Board had to comply with the Court's decision.

Turkcell also argued that its price policy should benefit from an exemption. In its analysis of this argument, the Board listed the four conditions for an individual exemption, namely:

  1. Ensuring new developments and improvements, or an economic or technical development in the production or distribution of goods and in the provision of services,
  2. Benefitting the consumer from these developments and improvements,
  3. Not eliminating competition in a significant part of the relevant market,
  4. Not limiting competition more than necessary for achieving the goals in sub-paragraphs (a) and (b).

The Board concluded that Turkcell's pricing policy subject to the investigation did not qualify for an exemption because (i) RPM practices restricted intra-brand competition and thus reduced consumer welfare, (ii) setting resale prices directly or indirectly was also considered as a restriction that is excluded from the scope of the Block Exemption Communiqué No:2002/2. Accordingly, the Board found that the conditions under (a) and (b) had not been met, and thus rejected Turkcell's request for an exemption.

Accordingly, the Board unanimously decided that Turkcell had infringed Article 4 of the Law No. 4054 through RPM practices.

The Board also dismissed Turkcell's argument on statute of limitation, which is eight years for competition law infringements, claiming that the statute of limitation was expired in 2016, and thus the Board could not have fined Turkcell for his conduct under investigation. While the Board acknowledged the documents the Court identified as incriminating evidence were related to the 2006-2008 period, since the lawsuit had continued from 2011 to 2017, the statute of limitations had not expired.

With regard to the fine calculation, the Board first considered recidivism as an aggravating factor since the Board had fined Turkcell in 2005. The Board held that while the law did not provide an explicit time limit for recidivism, the general statute of limitation for competition law infringements under the Law No. 5326 on Misdemeanour, i.e., eight years, should also apply also to increase the fine for repeating offences. As Turkcell I was based on documents from the period between 2006 and 2008, i.e., dated after the previous RPM decision, the Board held that recidivism was applicable and increased Turkcell's base fine.

With respect to recidivism, the Board rejected Turkcell's argument that the fine in 2005 was not related to RPM but to abuse of dominance, and thus could not be taken into account in recidivism. The Board, however, reinstated its approach in the Board's previous decisional practice, and held that the law did not limit recidivism to infringement of the same article of the Law No. 4054, nor was it necessary for the two infringements to be of similar nature. The Board further increased the fine due to the duration of the infringement, which was between 1-5 years. In terms of the turnover to be taken into consideration for calculating the base fine, the Board compared Turkcell's turnover for 2010 – the amount that would have been considered if the Board had decided on a fine in Turkcell I – against its turnover for 2017. The Board decided to proceed with the fine calculation based on Turkcell's turnover for 2010, which was in Turkcell's favour.

Finally, a majority of the Board decided to impose a fine of %1.125 of Turkcell's turnover from 2010, which amounted to approximately 92 million Turkish Liras.

While the Board unanimously found an Article 4 violation in this second decision, two Board members had dissenting opinion on the fine. These Board members argued that both types of violations (i.e., RPM and exclusivity practices) committed by Turkcell serve the same purpose, namely keeping the dealers under control. Accordingly, even if these two conducts were analysed under two different provisions of the Law No. 4054, namely, Articles 4 and 6, the acts pursuing the same goal cannot be deemed separate infringements. The dissenting opinion therefore found that since the Board had already fined Turkcell in the Board's Turkcell I decision for abuse of dominance, this second fine for RPM would not comply with the law and the fine amount for this second conduct should have been %0.25 instead.

Conclusion

Turkcell II and the underlying Court decision are noteworthy for several reasons: First, the Court decision is another example of a recent trend in the courts of first instance which more and more challenge the Board's substantive analysis and standard of proof. Second, the Board appears to be committed to continue its expansive interpretation of the law regarding recidivism and find any infringement of the Law No. 4054 sufficient for the next offence to be seen as "repetitive". Indeed, for the purposes of recidivism analysis, the Board considers RPM and abuse of dominance by exclusionary practices as the same infringement.

On the other hand, the Board considers RPM of Turkcell as a separate conduct in addition to the abuse of dominance fined in Turkcell I, while the Court held that RPM was also an "abuse of dominance". Interestingly, two Board members sided with the Court on this point and argued that Turkcell's conduct analysed in Turkcell I and II should not be considered independently, by citing Izocam (decision of 8.02.2010, no: 10-14/175-66) and Trakya Cam (decision of 14.12.2017, no: 17-41/641-280) decisions where the Board imposed only one fine for infringements of Articles 4 and 6.

The decision also signals that the Board's approach to the time period for recidivism analysis has now become more consistent. Indeed, the Board followed its approach in previous cases where the statute of limitation for competition law infringements was used as a benchmark to determine how far back in time the Board should go to decide whether the relevant undertaking was repeating an unlawful conduct.

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