July 2020 – The most important Turkish competition law development in June was the enactment of a law that entered into force on 24 June 2020, bringing significant amendments to Law No. 4054 on the Protection of Competition ("Turkish Competition Law"). These changes aim to bring competition legislation in Turkey much more in line with the EU competition law. For more details on this please see our article on this topic.
Merger control activity appears to have returned to pre-pandemic levels, as in June the number of decisions issued by the Turkish Competition Authority ("TCA") increased more than two-fold compared to the previous month.
However, although the effects of the pandemic on merger control activity seem to be starting to wear off, the TCA nevertheless postponed a total of nine oral hearings set for June and July to an unknown date due to Covid-19-related risks, per the requests of the undertakings.
Watch out for your WhatsApp correspondences
In June the TCA published its reasoned decision following its investigation of ten gas stations operating in the Southwest Anatolian city of Burdur for fixing the prices of auto gas, LPG, and fuel oil. The TCA imposed an administrative fine of 0.2% of annual turnover on each of the six undertakings.
The important point of this decision is that the TCA based its findings on correspondences of a WhatsApp group consisting of the competitors' employees. In its decision, the TCA stated that all manner of physical and/or electronic documents of any type of digital asset used by the undertakings to carry out their commercial/professional activities can be examined, and that the WhatsApp conversations were related to commercial activity and not private. The decision provides detailed analysis on the issue and sheds light on the on-going debate on whether the TCA has the authority to examine correspondence on messaging apps and social media.
Price control as an interim measure in an omnibus Covid-19 investigation
In response to price hikes at the beginning of the global pandemic, the TCA initiated an investigation into 29 undertakings active in the production of food and hygiene products and in organised retail (supermarket chains). After its initial review, the TCA issued an interim decision that requires the undertakings under investigation to provide information on any increases in the prices of food and hygiene products. The TCA indicated in its decision that it is investigating whether the price hikes can be deemed to constitute an abuse of dominance or a hub & spoke cartel.
TCA refuses to grant an exemption to a Mey Icki (Diageo) rebate system
Although Turkish Competition Law permits undertakings to make an individual exemption self-assessment, undertakings habitually apply to the TCA to receive a negative clearance or an individual exemption for the sake of legal certainty. Mey Icki, a subsidiary of Diageo, applied to the TCA for an individual exemption for their agreement with sales points. The TCA indicated, with reference to three previous decisions where it had found that Mey Icki had abused its dominant position on the raki, gin and vodka markets, that the minimum purchase amount to qualify for the rebate specified in the agreement is ambiguously designed and may be used to force sales points to purchase all or most of their requirements from Mey Icki. Therefore, the TCA decided not to grant a negative clearance or an individual exemption to Mey Icki's proposed agreement with its sales points.
The TCA approved the following merger control filings in June at the Phase I stage:
- Acquisition of sole control of Bombardier Transportation (the department of global railway solutions of Bombardier Inc.) by Alstom S. A.
- Acquisition of sole control of the automotive fabric branch of Adient Plc by Asahi Kasei Corporation via Sage Automotive Interiors, Inc.
- Establishment of a joint venture between Mitsubishi Chemical Holdings Corporation, via its wholly owned subsidiary Mitsubishi Chemical Corporation and Ube Industries Ltd.
- Acquisition of sole control of Doktor Tarsa Tarım San. ve Tic. A.Ş. by Tasaco Tarım San. ve Tic. A.Ş.
- Acquisition of sole control of Delphi Technologies Plc by BorgWarner Inc.
- Acquisition of the technology and intellectual industrial property rights excluding trademark rights regarding 10.5 – 25 meters electric bus within the product range of Bozankaya by Karsan as per the Agreement on Technology Transfer and Acquisition of Intellectual Industrial Property Rights signed between Karsan and Bozankaya on 20 May 2020.
- Acquisition of sole control of Inteltek Internet Teknoloji Yatırım ve Danışmanlık Ticaret A.Ş. by Intralot Iberia Holdings SAU.
- Acquisition of a limited number of shares of Tatilbudur by Çetin Yılmaz, and, subsequent to this acquisition, the transfer of a part of acquired shares to İş Girişim Sermayesi Yatırım Ortaklığı A.Ş, and another part of acquired shares to Derya Bülent Kuş.
- Acquisition of sole control of Unico Sigorta by SBK Holding via Heksagon Mühendislik.
- Acquisition of sole control of Gülçiçek Kimya by Fragar (Europe) SA.
- Acquisition of sole control of OceanConnect Marine HK Ltd, Ocean Connect Marine DMC, OceanConnect Marine GmbH and OceanConnect Marine Service LLC by Bunker Holding A/S through a transfer of shares and assets.
- Acquisition of joint control of Mytex Polymers (Thailand) Co by IRPC Public Company Limited, ultimately under the full control of PTT Public Company Limited and Japan Polypropylene, ultimately under the full control of Mitsubishi Chemical Holdings Corporation.
- Acquisition of sole control of the construction chemicals branch of BASF SE by LSF11 Skyscraper Investments S.a.r.l, an indirect subsidiary of Lone Star Fund XI, L.P. investments fund, operated by Lone Star Funds, a global private equity investor.
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