The Turkish Competition Authority takes a thorough approach to mergers and antitrust investigations in the maritime industry, using both qualitative and quantitative evidence to make well-informed decisions. For parties to a prospective merger or antitrust investigation, having an experienced competition economist as part of their legal team is recommended.
The outbreak of COVID-19 hit the world economy seriously and made us think much more strategically about the global and local supply chains. Together with the effects of other essential global trends, this will inevitably result in structural changes in the port and maritime industries. One of the changes may be an increase in consolidations when it is also considered that this industry is also strained with low margins. Mergers & acquisitions activity in the port sector has already been increasing.1 According to a report by Ocean Shipping Consultants, "The bolstered earnings drove vertical capacity acquisition and triggered an M&A jostle for supply chain dominance between ports and shipping lines".2
In this regard, we sketch out the vantage point of the economic analysis carried out by the Turkish Competition Authority ("TCA") to the M&A's in this industry by focusing on three Phase-2 merger decisions3 and one abuse of dominance case 4 held by TCA in recent years. Two of those merger cases were finalised by rejection, and one was cleared only with commitments. And in the abuse case, the investigated undertaking was imposed a considerable fine.
In these previous cases concerning the port industry, both the case handlers and the Competition Board focused on the relevant market. The subject of the analyses was the boundary of the geographical area affected by the transaction (or the infringement). The outcome was determined by how the relevant geographical market was defined. This approach, which puts the relevant geographic market at the centre of the examination, will continue in the TCA's future investigations in this sector.
In addition, particularly regarding the container ports, we expect TCA to follow its case law on these topics as well:
– Container handling services will be the major relevant product,
– Competition in local cargo handling will be considered more than transit cargo handling.
Apart from the qualitative evidence, such as the opinions of the customers and competitors, TCA used the hypothetical monopolist test (HMT), full-equilibrium relevant market test (FERM), price correlations, cointegration and stationarity tests, and price-cost analysis as quantitative techniques to support its claims. While carrying out these empirical analyses, the TCA gathered a vast amount of data from the parties and almost from the market participants.
The TCA prioritises mergers in the maritime sector, especially in ports. Using all the techniques (both qualitative and quantitative) at his disposal, it makes very detailed analyses. In all of the mentioned cases, the case handlers referred to the comprehensive empirical studies carried out by the TCA Economic Analysis and Research Department, which comprises trained competition economists.
In this regard, parties to a prospective merger or a likely antitrust investigation in the maritime industry may benefit from strengthening their legal teams with experienced competition economists. Also, utilising the perspectives and analysis of the competition economists, even during the due diligence stages of a prospective merger, would benefit the parties by allowing them to take proper actions in advance.
Footnotes
1. https://www.portstrategy.com/mergers-and-acquisitions-up-in-port-sector/1379624.article
2. Cited at https://theloadstar.com/continued-maritime-liquidity-will-drive-the-biggest-ma-deals-this-year/
3. Marport/TIL (Decision No: 20-37/523-231 dated 13.08.2020), Mardas/Marport (Decision No: 18-14/267-129 dated 08.05.2018), UN-RoRo/Ulusoy (Decision No: 17-36/595-259 dated 09.11.2017).
4. The allegation that Ortadogu Antalya Liman Isletmeleri A.S., which operates the Port of Antalya, acted together with container line agencies operating in Antalya to exclude agencies providing logistics services outside the port area. (Decision No: 22-11/169-68, Date: 03.03.2022) Ortadogu Antalya Liman Isletmeleri.
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