August 2023 – In July 2023, the Turkish Competition Board (the "Board") approved ten merger and acquisition transactions, including Microsoft's highly debated acquisition of sole control of the US video game holding company Activision Blizzard.
The highlight of Turkish competition law in July was that the Board concluded two on-going investigations, including its labour market investigation, and held oral defences for four investigations.
No-poaching investigation results in fines
In July 2023, the Board concluded its investigation on alleged anti-competitive agreements in the labour market involving more than thirty undertakings operating in diverse sectors. The Board scrutinised the so-called "gentlemen's agreements" (i.e., no-poaching agreements) that allegedly involve anti-competitive limitations on the transfer of employees in various sectors. The Board also indicated that no-poaching agreements decrease employee mobility and lead to artificial suppression of wages, thus preventing wages from finding their actual value. In this vein, 16 undertakings faced monetary fines in a total amount of approximately EUR 14.5 million.
Turkey's leading e-commerce platform Trendyol faces a fine for self-preferencing
On 27 July, the Board announced its conclusions regarding an investigation into Trendyol, a major e-commerce platform in Turkey. The investigation revolved around allegations that Trendyol engages in unfair practices to provide an advantage for its own private label ("PL") products by manipulating algorithms and misusing data from third-party retailers.
As a result of its investigation, the Board imposed a hefty fine of approximately EUR 5.9 million on Trendyol for abusing its dominant position on the market of multi-category e-marketplace retailers. Additionally, the Board issued a series of measures that Trendyol must implement to ensure effective competition in the market, as summarised below:
|
Algorithm Interference |
Data Misuse |
Preservation of Algorithm Models and Data |
|
To prevent Trendyol from interfering with algorithms so as to favour its own PL products, the Board has instructed that Trendyol:
|
To prevent further misuse of the data obtained from marketplace activities to be used to provide a competitive leverage for Trendyol's PL products, the Board has directed Trendyol to: - prohibit the disclosure of third-party sellers' data to the PL team, which is to be established as a separate team, and prevent its use to benefit Trendyol's PL brand. |
The Board also requires Trendyol to preserve the algorithm models, codes and software that are used in marketplace activities for a period of three years. Furthermore, Trendyol must submit annual reports on its compliance with the imposed measures for five years. |
The Board stresses standard of proof in RPM case
The Board has concluded its investigation against BSH, the Turkish distributor of brands such as Siemens, Bosch and Profilo, with reference to its previously published decision regarding its approval of the commitments offered by BSH. The investigation focused on whether BSH restricted the customers/regions to which its resellers may sell and/or maintained the resale prices ("RPM") of its resellers.
Concerning the findings indicating that BSH "prohibited online sales" as well as "intervened with the resale prices", the Board made the following assessments, particularly on the standard of proof:
- The findings alleging the maintenance of resale prices consisted of unilateral statements from resellers, which did not clearly indicate that BSH maintained resale prices. As a result, the Competition Board concluded that it had not been proven "beyond any doubt" that BSH engaged in RPM practices.
- Concerning the region/customer restriction allegations, the Competition Board clarified that the restriction in question mainly aimed at preventing the sales of resellers operating within a selective distribution system to unauthorised resellers. The Board determined that preventing authorised resellers from selling to unauthorised ones within such system does not violate competition law.
Based on these assessments, the Board decided that there was no ground for imposing an administrative fine against BSH.
Individual exemption granted for physical point of sale ("POS") services
On 24 July, the Turkish Competition Authority published that the Board has concluded its preliminary investigation against the Turkish subsidiary of Qatari National Bank (i.e., QNB Finansbank).
QNB Finansbank came under scrutiny for its practices related to customer restriction concerning POS services. The Board launched a preliminary investigation in 2021 after finding indications that QNB Finansbank hindered its competitors from providing POS services to businesses that it also served.
Within the scope of its preliminary investigation, the Board resolved to grant an individual exemption for QNB Finansbank, as QNB Finansbank's practice is (i) limited to physical POS services, (ii) exclusive to existing customers, and (iii) aimed at addressing customer dissatisfaction and other risks related to unincorporated technical infrastructure. In this vein, the Board concluded to limit the individual exemption's duration to the maximum legal period needed for establishing the specified technical infrastructure.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
