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ACTECON provides services to its local and international clients in the areas of competition law, international trade and regulations.

ACTECON draws its strength from its committed and solution-oriented team, extensive sector-specific knowledge, local and multinational expertise and know-how on the insights of the business world. ACTECON is experienced in offering effective strategies from the perspective of law & economics. The firm creates difference through its in-depth understanding of the global competition and the challenges of the global economy. The firm’s principles include international work ethic, commitment to provide value-added service and consistency in every aspect.

Focusing on competition law, ACTECON works with multinationals located in Turkey with the perspective of corporate compliance basis and international service standards. We currently provide services to multinationals in leading industries. Our services focus on implementing competition law compliance through our custom made Competition Compliance Program (also incorporating an e-learning base that is designed and owned by ACTECON), and representing companies in Turkish Competition Authority’s investigations.

ACTECON’s Trade Team has extensive experience in trade remedies and related custom problems, in-depth knowledge of the Turkish business world, and a well-established, excellent working relationship with Turkish public authorities including the Turkish Ministry of Trade.

ACTECON helps clients tailor solutions to execute industry-specific strategies and build strong cases in anti-dumping, safeguard and anti-circumvention investigations and customs applications of trade remedies.

ACTECON has represented and assisted both domestic and foreign interested parties in several cases in Turkey and abroad, working alongside clients and law firms.

As part of our regulations expertise, we design Data Protection Compliance programs for companies by implementing our extensive knowledge of various sectors.

Press Releases

Lear Competition Festival (LCF)

14th June 2023 ACTECON is proud to be a partner of the Lear Competition Festival (LCF) to be held in Rome between 26 and 29 September 2023.

New Rules on Agricultural Research and Development Support Programme

16th May 2023 It is possible to develop technology to provide sufficient and safe access to food for the rapidly increasing population with limited agricultural resources, only through Research and Development (“R&D”) and innovation activities.

The Turkish Competition Authority Has Concluded the Investigation Conducted against One of the Leading Household Appliances Companies with the Approval of the Proposed Commitments! (BSH)

16th May 2023 Introduction The TCA has been initiating one investigation after another into sectors that closely affect the lives of consumers in recent times.

The Turkish Competition Authority Publishes the Final Report on the Turkish FMCG Retailing Sector Inquiry

16th May 2023 The Fast-Moving Consumer Goods ("FMCG") retailing sector is one of the most important areas under the TCA’s focus due to its structure and key role in the economy.

The New Regulation Sets Out the Framework for the Authority and Social Network Providers – Interested Parties Should Scrutinise

16th May 2023 The Decision of the Information and Communication Technologies and Communication Board (“Board”) on Procedures and Principles Regarding Social Network Provider[1] (“Decision”) entered into force on 1 April.

Establishment of the Rebar Monitoring System: New Obligations for Rebar Producers, Importers and Taxpayers Operating in the Construction Sector?

16th May 2023

Introduction

On 16 March 2023, the Ministry of Treasury and Finance (Turkish Revenue Administration) published the General Communiqué on Application of Rebar Monitoring System.

State Aids – Does New Regulation Bring Precision?

16th May 2023 On 31 March 2023, a Presidential decision was announced in Official Gazette with respect to the enactment of the Regulation on the Procedures and Principles Regarding the Implementation, Coordination,

The Constitutional Court of Turkey Examined the Constitutionality of the Amendments Made in 2020 to Turkish Competition Law

16th May 2023 The Constitutional Court of Turkey (the “Court”) delivered a judgment on 9 November 2022[1] regarding the action for an annulment application made by the 137 members of the Grand National Assembly of Turkey against amendments introduced in 2020 to various articles of Law No. 4054 on the Protection of Competition (“Competition Law”).

The Turkish Competition Authority Takes a Wide Interpretation of the “Technology Undertaking” Exception Applicable to the Turkey’s Merger Control Thresholds

16th May 2023 The interpretation of the exemption brought for “technology undertakings” took a sudden turn with the Turkish Competition Authority’s (“TCA”) recent Berkshire Hathaway Decision (15.09.2022, 22-42/625-261) which resolved that the exception brought to the merger control thresholds by the recent amendment for the technology undertakings shall be considered applicable, even if the activities of the target undertaking that can be classified to fall under the definition of technology undertaking, are carried out in other geographical markets than Turkey.

The TCA Publishes Pioneer Decisions on the Simultaneous Implementation of the Leniency and Settlement Procedures

16th May 2023 Following the introduction of the settlement procedure, the number of undertakings applying for settlement has been increasing consistently. In this respect, the Turkish Competition Authority’s (“TCA”) evaluations regarding the implementation of the settlement procedure have become an object of curiosity as the investigations that ended with settlement decisions continue to be announced on the official website of the TCA.

Simultaneous Utilization of Both Commitment and Settlement Mechanisms

16th May 2023 The settlement and commitment procedures have been increasingly utilized within the decisions of the Turkish Competition Authority (“TCA”), but the adoption has been debated since 2014, when the mechanisms came to the agenda of the parliament but were refused after long discussions.

The Commitment Mechanism is not Open to Negative Matching Agreements

15th May 2023 The Turkish Competition Authority (“TCA”) launched a full-fledged investigation (“Investigation”) against Arabam Com İnternet ve Bilgi Hizmetleri A.Ş. (“Arabam.com”), Vava Cars Turkey Otomotiv A.Ş. (“VAVA CARS”), Araba Sepeti Otomotiv Bilişim Danışmanlık Hizmetleri Sanayi ve Ticaret A.Ş. (“KAVAK”), and Letgo Mobil İnternet Servisleri ve Ticaret A.Ş. (“Letgo”), which operate in the purchase and sales of second-hand passenger cars via their online platforms to determine whether these undertakings violated Article 4 of  Law No. 4054 on the Protection of Competition (“Competition Law”).

ACTECON is happy to announce promotion of two Seniors to Counsel positions and two Associates to Senior Associate positions

26th January 2023 ACTECON promotes Senior Associates Mr. Caner K. Cesit and Mr. Mustafa Ayna to Counsel, Mid-Level Associates Ms. Ozlem Basiboyuk Coskun and Mr. Alper Karafil to Senior Associate, and Ms. Cansen Erensoy to Mid-Level Associate position, effective as of January 2, 2023.

Legal Developments

A Landmark Decision by the Constitutional Court about On-site Inspections Conducted by the Turkish Competition Authority: A Judge’s Decision is Necessary for Conducting On-site Inspections

26th June 2023 The Constitutional Court published a significant decision (“Decision”) which includes critical assessments on whether the on-site inspections conducted by the Turkish Competition Authority (“TCA”) violate the inviolability of domicile protected under Article 21 of the Constitution of the Republic of Turkey (“Constitution”).

Turkish Competition Authority’s Vigilance on Digital Markets: Examining Recent Initiatives and Their Implications

14th June 2023 In line with the global trend, the Turkish Competition Authority (the “TCA”) has recently displayed a remarkable level of interest in addressing competition concerns on digital markets.

Investigation into the Small Household Appliances Sector Concluded with Settlement Procedure!

14th June 2023 The Turkish Competition Authority (“TCA”) initiated a full-fledged investigation (“Investigation”) against Korkmaz Mutfak Eşyaları San. ve Tic. A.Ş. (“Korkmaz”), Gençler Ev Araç ve Gereçleri Pazarlama Tic. A.Ş. (“Gençler”) and Punto Dayanıklı Tüketim Malları İth. İhr. Tic. Ltd. Şti. (“Punto").

Unveiling the Distinction: Turkish Competition Authority Clarified “Mergers” and “Acquisitions” under Turkish Merger Control Regime

14th June 2023 With its decision dated 17 March 2022 and numbered 22-13/205-88, the Turkish Competition Authority (“TCA”) cleared the transaction concerning the merger of Slim Fusina Rolling S.R.L. (“Slim Fusina”) and Niche Fusina Rolled Products S.R.L. (“NFRP”) (the “Transaction”) on the grounds the Transaction does not significantly impede effective competition.

The Turkish Competition Authority Fines Elon Musk due to Failure to Notify the Twitter Deal

28th March 2023 On 06.03.2023, the Turkish Competition Authority ("TCA”) announced its decision to fine Elon Musk due to failure to notify the $44 billion deal to acquire Twitter. The TCA’s reasoned decision is not available for the time being but English version of the TCA’s announcement in terms of the fining decision reads as following:

The TCA Publishes Pioneer Decisions on the Simultaneous Implementation of the Leniency and Settlement Procedures

21st February 2023 Following the introduction of the settlement procedure, the number of undertakings applying for settlement has been increasing consistently. In this respect, the Turkish Competition Authority’s (“TCA”) evaluations regarding the implementation of the settlement procedure have become an object of curiosity as the investigations that ended with settlement decisions continue to be announced on the official website of the TCA. Two reasoned decisions published on 17 January 2023, were indeed significant in this context as the administrative fines were reduced to a record-breaking extent (a total of 60% for Kınık Maden Suları A.Ş. (“Kınık”) and %55 for Beypazarı İçecek Pazarlama Ambalaj Turizm Petrol İnşaat Sanayi ve Ticaret A.Ş. (“Beypazarı”)) within the simultaneous implementation of the settlement and leniency procedures.

The Turkish Competition Authority Takes a Wide Interpretation of the “Technology Undertaking” Exception Applicable to the Turkey’s Merger Control Thresholds

21st February 2023 The interpretation of the exemption brought for “technology undertakings” took a sudden turn with the Turkish Competition Authority’s (“TCA”) recent Berkshire Hathaway Decision (15.09.2022, 22-42/625-261) which resolved that the exception brought to the merger control thresholds by the recent amendment for the technology undertakings shall be considered applicable, even if the activities of the target undertaking that can be classified to fall under the definition of technology undertaking, are carried out in other geographical markets than Turkey.

The Turkish Competition Authority Concluded Its Preliminary Investigation Regarding Car Rental Services Market

21st February 2023 On 31 January 2023, Turkish Competition Authority’s (“TCA”) decision dated 21 July 2022 and numbered 22-33/526-212 regarding a preliminary investigation into the car rental services market (the “Decision”) was published on the TCA’S official website. Back in 2020, the TCA started this preliminary investigation in order to determine whether the undertakings that are engaged in car rental activities violated Article 4 of Law No. 4054 on the Protection of Competition (“Competition Law”). Within this scope, the TCA conducted on-site inspections on the premises of twelve undertakings and took copies of more than a hundred findings. In the Decision, the TCA concluded that there was no evidence showing that undertakings operating in the car rental services market were party to an exchange of information which restricted competition, therefore, there was no need to launch a full-fledged investigation.

Badmouthing—Abuse under Turkish Competition Law?

8th February 2023 In recent years, competition authorities around the world have been scrutinising new types of behaviour that might be deemed abusive within the context of antitrust laws. Although those relating to digital markets receive the most attention, not a day passes by without a surprising decision announced by the authorities or competent courts. The decision of the Ankara 7^th Administrative Court of First Instance[1] (“CFI” or the “Court”) requiring the Turkish Competition Authority (“TCA”) to investigate allegations of denigration and deceptive practices can be considered one of them. In this blog post, we examine the TCA’s case law to illustrate its general approach towards such allegations in previous decisions. Before delving into the details of the mentioned case, it must be stressed that in line with the approaches adopted by several competition authorities in the EU, the TCA highlights in its decisions that denigration and deceptive practices by dominant companies actually can be a concern of competition law.

Where to Draw the Line of the Scope of Right to Access to Personal Data? The Constitutional Court Ruled on One’s Right to Access Their Own Personal Data

8th February 2023 On 20.12.2022, The Turkish Constitutional Court’s (“Constitutional Court”) decision concerning the right to an effective remedy in connection to the right to request protection of the data subject’s personal data within the scope of the right to respect for private life was published in the Official Gazette[1]. In its decision, the Constitutional Court established that the failure to examine the merits of an applicant’s lawsuit renders a theoretically available remedy ineffective. In other words, it was determined that a remedy which can be considered effective at the theoretical level loses its capacity to offer a chance of success due to the interpretation of the courts.

The Turkish Competition Authority’s M&A Overview Report for 2021 Has Been Published

27th January 2023 The Turkish Competition Authority’s (“TCA“) Mergers and Acquisitions Overview Report for 2021 (“Report”) has been published at the TCA’s official website on January 7, 2022. The Report provides an overview of the TCA’s activities regarding M&A transactions and includes brief information on the merger control filings by making comparisons between 2021 and previous years in different aspects such as the position of Turkish and foreign companies in the market and value and total number of the transactions notified to the TCA conducted in various sectors. Considering the value of Turkish-to-foreign transactions as well as foreign investments in the Turkish companies in 2021, it is seen that the foreign investors have been showing their interest to Turkish market again after a year of recession.

A Look at TCA’s Approach to Abuse of Dominance through the Lens of AG Rantos’s Opinion

27th January 2023 In recent weeks, highly praised opinion ("Opinion”) of the Advocate General Rantos, which was originally published in French, is released in English.[1] In this article, we summarized the opinion of the Advocate General in four short sections and, supplemented each section with the decisional practice of the Turkish Competition Authority (the “TCA”) as a comparison benchmark.

Main Developments in Competition Law and Policy 2021:Turkey

27th January 2023 2021 has been a busy year in many aspects, including competition law and policy in the Republic of Turkey. The Turkish Competition Authority ("TCA") developed and adopted its secondary legislation in response to amendments to Law No. 4054 on Protection of Competition ("Turkish Competition Law")[1]. These recent developments on the secondary legislation include (i) the introduction of the Regulation on the Settlement Procedure, the De Minimis Communiqué and the Communiqué on the Commitments, and (ii) amendment of the Block Exemption Communiqué on Vertical Agreements. The TCA also paid close attention to the fast-moving consumer goods market and digital markets.

Communiqué Concerning the Mergers and Acquisitions Calling for the Authorization of the Competition Board Has Been Amended

27th January 2023 On 04.03.2022, important amendments/additions has been introduced to the Communiqué Concerning the Mergers and Acquisitions Calling for the Authorization of the Competition Board (“Communiqué No. 2010/4”). With this article, it is aimed to summarize these latest amendments in the Communiqué No. 2010/4.

The First Settlement Decision in Turkey at A Glance: Philips et al. Case

27th January 2023 The implementation of the settlement mechanism by the Turkish Competition Authority (“TCA”) is becoming more and more common every day ever since the Regulation on the Settlement Procedure for Investigations on Anticompetitive Agreements, Concerted Practices, Decisions and Abuse of Dominant Position ("Settlement Regulation") entered into force on July 15, 2021.  It is evident that the TCA has sped up the implementation of the settlement mechanism and is looking forward to applying this mechanism effectively. 

Fintech in Turkey: Regulation & Competition Law Update

27th January 2023

A lot has changed in the outlook of fintech regulatory ecosystem since the last four months in Turkey. Starting from Central Bank’s Regulation on Payment Services and Electronic Money and Payment Service Providers; Turkish Competition Authority, with its game-changing Report on Financial Technologies in Payment Services, and Banking Regulation and Supervision Agency (“BRSA”), issuer of the Rules on the Operation of Digital Banks and Service Model Banking, have been vigorous for setting the rules of the game in fintech industry. Finally, the Finance Office of Turkish Presidency’s Fintech Ecosystem Status Report has revealed the upcoming National Fintech Strategy Paper’s fundamental aims, along with the good news on the establishment of Istanbul Finance and Technology Base. In this brief, we summarise the latest developments in Fintech industry from Turkey.

New Footprints in the Framework of SEPs and FRAND Terms

27th January 2023 The intersection between intellectual property and competition law is always on the agenda of lawmakers. Since there is an imbalance between the exclusivity rights ensured by intellectual property law and anti-competitive practices that the competition law protects, the notion of standard-essential patents (SEP) and a commitment to license these patents on a fair, reasonable and non-discriminatory (FRAND) basis are accepted to preserve the competitive landscape with regard to licensing issues. However, licensors and licensees still have discrepancies on the FRAND terms, and this keeps authorities and courts busy with handling each party’s requests. While it is nearly impossible to satisfy both parties’ demands, recently, we observed that there are footprints of significant regulatory initiatives that would likely shape the nexus between intellectual property and competition law. Indeed, the most influential jurisdictions, the European Union (EU) and the United Kingdom (UK) have launched fresh inquiries concerning the framework of SEP and FRAND. Below we discuss these developments and then elaborate on the Turkish stance related to the matter.

The TCA’s Stance on No-poaching Agreements: A Comparative Analysis

27th January 2023 The labor market has gradually increased its place on the agenda of competition law, especially in the last ten years. No-poaching agreements (agreements between competitors to not transfer employees from each other) come first among the elements that constitute the subject of competition law in the labor market. Like the other competition authorities, the Turkish Competition Authority (“TCA”) has also examined no-poaching agreements in various decisions.

Attorney-Client Privilege from Competition Law Perspective: Comparison Between Turkish and French Legal Systems

27th January 2023 The attorney-client privilege is a common law concept of legal professional privilege in the United States. The concept also exists in civil law countries where there is a secrecy obligation on the part of professionals in guaranteeing that clients’ confidential information is kept secret from disclosure to third parties. The civil law concept of attorney-client privilege is generally regulated under special laws such as legal practitioner acts or through national criminal law. Even if the principle of attorney-client privilege generally has a significant place in all legal systems it creates an ambiguous area within the scope of competition law depending on the country. However, neither Turkey nor France has specific dispositions under their national laws which are Law No. 4054 on the Protection of Competition (“Competition Law”), the French Civil Code (“FCiC”), and the French Commercial Code (“FCoC”). However, for Turkey, the Turkish Competition Authority (“TCA”) sets specific conditions related to this matter, whereas, in France, the French Competition Authority (“FCA”) is still ambiguous on the subject.

The Court’s Fact Check: The First-Degree Court Quashes in Part and Affirms in Part the Comprehensive Interim Measures Decision Brought by the Turkish Competition Authority Against Trendyol

27th January 2023 Until recent times, an interim measure decision of the Turkish Competition Authority (“TCA”) was something hard to come by. However, with the growing prominence of digital markets and the equally strong response from the competition authorities, that situation has changed as well. The latest experience shows that the TCA is more determined to actively use this tool in an attempt to efficiently respond to conducts in these fast-evolving markets.

Administrative Court Decided to Stay the Execution of Turkish Competition Authority’s Decision of Administrative Monetary Fine for Hindrance of On-site Inspection (Sahibinden.com)

27th January 2023 As is well known, the Turkish Competition Authority (“TCA”) is authorized to examine all data and documents on electronic platforms and information systems during the on-site inspections pursuant to the amendment dated 16.06.2020 on Article 15 of Law No. 4054 on the Protection of Competition (“Competition Law”). Subsequently, the TCA published the Guidelines on the Examination of Digital Data during On-Site Inspections on 09.10.2020.

Automotive Companies are Cleared of the Allegations of Stockpiling and Competitively Sensitive Information Exchange!

27th January 2023 The automotive sector has been on the radar of the Turkish Competition Authority (“TCA”) for a long time. In this sense, the TCA conducted an investigation (“Investigation”) regarding the allegations that some undertakings operating in the first-hand and second-hand automotive markets violated Law. No. 4054 on the Protection of Competition (“Competition Law”) via stockpiling and increasing the vehicle prices together.

Lack of Evidence is not Evidence: TCA’s Differing Approach to Standard of Proof for Hinderance of On-Site Inspections

27th January 2023 In accordance with the Turkish Competition Authority’s (“TCA”) decision dated 25.11.2021 and numbered 21-57/796-M, the TCA initiated an investigation against undertakings in the market for fast-moving consumer goods to ascertain whether Article 4 of Law No. 4054 on the Protection of Competition (“Competition Law”) has been violated. Within this scope, the TCA conducted an on-site inspection on 08.12.2021 at the premises of Yeni Mağazacılık A.Ş. (“A101”).

Of SIEC-Test and Thresholds: Merger Control 2022 in Turkey

27th January 2023 The substantial rules of the Turkish merger control are taken from the corresponding EU provisions. The amendments to the Turkish Competition Law in 2020 introduced the SIEC test to improve the concentration control regime and harmonize it with the EU rules even further. The amended Merger Communique in 2022 revised the thresholds as a response to the national currency devaluation and rapid developments in technology/digital markets, intending to prevent killer acquisitions, as well as decreasing the Turkish Competition Authority’s (TCA) caseload. In this short article, we would like to provide you with the important aspects of merger control in Turkey, including the main changes that came into effect following the reform of the Turkish Competition Law in June 2020.

Turkish Competition Authority Terminated its Investigation Against Leading e-Scooter Rental Firm with Commitments

26th January 2023 New markets are under the intense scrutiny of the Turkish Competition Authority (“TCA”) due to new competitive concerns arising from the disruption that has emerged with the technological changes in the markets. Recently, the TCA has shifted its focus to emerging markets while monitoring the traditional markets constantly. In this framework, in July, the TCA initiated a full-fledged investigation against Martı İleri Teknoloji A.Ş. (“Martı”), the leading e-scooter rental firm, which is offering micromobility/microtransit service. Approximately one and half months later, in September, the TCA announced that the investigation against Martı is terminated with commitments.

A New Age for Digital Markets in Turkey? The Draft Amendment to the Law No. 4054 on the Protection of Competition

26th January 2023 This blogpost will give an overview on the draft amendment (the “Draft Amendment”) to the Law No. 4054 on the Protection of Competition (the “Law No. 4054”). The key points of the Draft Amendment concern:

Türk Telekom Decision: Recent Approach to Refusal to Deal

26th January 2023 The Turkish Competition Board (the “Board”) published its reasoned decision dated 30.09.2021 and numbered 21-46/667-332 (the “Decision”) concerning the full-fledged investigation launched against Türk Telekomünikasyon A.Ş. (“TT”) upon the complaints of undertakings operating in the retail fixed broadband internet access services market (downstream market). In their complaints, internet service providers (“ISPs”) alleged that TT rejected the requests for the provision of service that is necessary for them to provide access to their subscribers on unreasonable or unjustified grounds (no available ports or insufficient technical infrastructure), TT directed the subscribers to its subsidiary TTNET A.Ş. (“TTNet”), its conducts resulted in the exclusion of ISPs from the market, thus, constituted discrimination in favor of TT. Therefore, it was claimed that TT abused its dominant position in the wholesale fixed broadband internet access services market (upstream market) through its subsidiary TTNet in the downstream market.

Dawn raids in Turkey – Can Companies Avoid Responsibility by Asserting Subjective Grounds for the Deleted Data During On-site Inspections?

26th January 2023 The Turkish Competition Authority (TCA) has rendered a number of decisions, particularly in recent years, on whether on-site inspections have been hindered or complicated. These include two recent decisions on D-Market Elektronik Hizmetler ve Ticaret A.Ş. ("Hepsiburada"), one of the largest e-marketplaces in Turkey.

Turkey – What to Consider in Sharing Sectoral Reports with Sector Members?

26th January 2023 The Turkish Competition Authority (“TCA”) has rendered several decisions in recent years concerning the exchange of competitively sensitive information . A significant number of these decisions have involved negative clearance/exemption applications made to the TCA by undertakings seeking to lawfully exchange information among themselves.

The Turkish Competition Authority Sets the Boundaries of its “Technology Undertaking” Definition

26th January 2023 On 4 March 2022, the Turkish Competition Authority (the “TCA”) increased the notification thresholds set in its merger regulation, i.e., Communiqué No. 2010/4 on the Mergers and Acquisitions Calling for the Authorisation of the Competition Board (“Communiqué No. 2010/4”). In addition to the amendment of turnover thresholds, the TCA added an exception to these thresholds for transactions involving acquisitions of what it defines as “technology undertakings.”

The Information You Have Requested Cannot Be Reached at the Moment: The Regional Administrative Court Upheld the Board’s Decision Imposing Fines on Five International Banks for Not Providing the Requested Information

26th January 2023 On 26 October 2022, the Ankara Regional Administrative Court’s 8^th Administrative Chamber revoked[1] an earlier decision[2] of the Ankara 3^rd Administrative Court that had annulled the Turkish Competition Board’s (the “Board”) decision concerning the imposition of administrative monetary fines on five international banks for failure to provide the requested information/data.[3]

TCA Imposed Interim Measures on Krea

26th January 2023 As per Article 9(4) of Law No. 4054 on Protection of Competition (“Competition Law”), the Turkish Competition Authority (“TCA”) is entitled to impose interim measures in order to maintain the environment before the violation, without exceeding the scope of the final decision, in case of a possibility of serious and irreparable damages. It is observed that the TCA imposed interim measures for certain cases where it deems necessary in recent years.

The Ankara 13th Administrative Court Rules for the Annulment of Turkish Competition Authority’s Cartel Decision Due to Failure of Standard of Proof (Kronospan)

26th January 2023 The Ankara 13^th Administrative Court ("Court")[1] recently annulled with its decision (“Court Decision”) the Turkish Competition Authority's ("TCA") cartel determination[2] (“TCA Decision”) against Kronospan Orman Ürünleri San. ve Tic. A.Ş. (“Kronospan”) in a decision through which it had imposed on 11 undertakings active in the MDF and flakeboard markets an administrative monetary fine for violating Article 4 of Law No. 4054 on the Protection of Competition ("Competition Law").

Adidas Cleared of Allegations Regarding Resale Price Maintenance and Discrimination

26th January 2023 The Turkish Competition Authority (“TCA”) has launched numerous investigations into whether undertakings maintain their dealers' resale prices. These investigations include one launched into one of the most well-known sports product brands, Adidas Spor Malzemeleri Satış ve Pazarlama Anonim Şirketi (“Adidas”).

First Decision by the TCA to Impose Fine to the Labour Market!

26th January 2023 The Turkish Competition Authority (“TCA”) has published its reasoned decision dated 24.02.2022 and numbered 22-10/152-62 (“Private Hospitals Decision” or “Decision”) in which it examined the allegations that private health institutions and an association of undertaking (i) jointly determined the operating room service fees charged to freelance physicians, (ii) restricted competition by preventing employee transfers and jointly determining the salary scales of employees, and (iii) exchanged competitively sensitive information. Within the scope of the Decision, the activities of the relevant undertakings operating in Turkey’s two provinces, Samsun and Bursa, were examined separately.

Be Warned! TCA Fines Türkiye’s Leading Electric Scooter Rental Company For False and Misleading Information (MARTI)

26th January 2023 On 5.12.2022, The Turkish Competition Authority (“TCA”) published its decision imposing a monetary fine on Martı İleri Teknoloji A.Ş. (“Martı”), a leading electric scooter rental company in Türkiye, for providing false and misleading information[1]. The reasoned decision of the TCA indicated that the Authority had communicated with Martı via email after receiving the official answers to its initial request for information with the aim to clarify any confusions that Martı might have had regarding the requested items and decided to impose a fine only after the second round of answers, which were still false and misleading, according to the TCA.

New Regulation on Waste Electrical and Electronic Equipment Was Adopted

26th January 2023 The Regulation on the Control of Waste Electrical and Electronic Equipment (“CWEEE Regulation”) was revoked on Monday through the adoption of the new Regulation on the Management of Waste Electrical and Electronic Equipment (“MWEEE Regulation”) published in the Official Gazette, numbered 32055. Prepared as part of the harmonization process with the European Union (“EU”) legislation[1], MWEEE Regulation will enter into force on 1 February 2023. The renewed regulation brings significant new rules to the sector including the establishment of the EEE Information System and the obligation to register for EEE manufacturers, the disappearance of the concept of “authorized institution”, extraterritoriality clauses regarding the definition of ‘producer’ etc. Accordingly, we aim to provide a brief account of the important changes brought by the MWEEE Regulation in this short article.

ANTI-DUMPING MEASURES WHICH ARE TO EXPIRE IN 2023 AND WHAT KIND OF CONNOTATIONS THIS MIGHT HAVE ON INTERESTED PARTIES

26th January 2023 When we review the Turkish Ministry of Trade’s official website and considering the latest global developments regarding the international trade, we believe that 2023 is going to be a busy year. In this regard, it is of utmost interest to parties which have stakes in this area to closely monitor and anticipate which investigations may be initiated, so as to either apply for an expiry review or to prepare for them. This becomes especially significant when the amount of scrutiny and work these investigations require the interested parties to dedicate.

The Turkish Competition Authority Published Mergers and Acquisitions Overview Report for 2022

26th January 2023 The Turkish Competition Authority (“TCA”) has published its Mergers and Acquisitions Overview Report for 2022 (“Report”) on January 6, 2023. For ease of reading, we will refer to M&As as mergers.

CONTINUTION OF ANTI-DUMPING MEASURES CONCERNING THE BABY CARRIAGES AND PARTS OF BABY CARRIAGES

26th January 2023 Despite the huge workload and new appointments in 2022, the trade remedies continue to be one of the key tools used by the Turkish Ministry of Trade (“Ministry”) in ensuring the fair international trade practices and shaping the free trade rules to restore the competitive balance. Recently, the Ministry concluded an expiry review investigation concerning the imports of “baby carriages, parts of baby carriages (chassis only)”[1] originating in China.[2] This case is noteworthy because the measures are applicable for almost two decades and the Ministry established no dumping margin but still determined that the expiry of the measures would be likely to result in a continuation or recurrence of dumping.

Two Edges of Europe Cross Lines: The CMA Fines BMW AG for Failing to Comply with an Information Request

26th January 2023 The Competition and Markets Authority (“CMA”) of the UK has fined Germany-based Bayerische Motoren Werke Aktiengesellschaft (“BMW AG”), the ultimate parent company of the BMW Group, for failure to comply fully with a written information request without reasonable excuse through its decision of 6 December 2022 (“CMA Decision”). The fine includes a fixed amount of GBP 30,000 plus a daily amount of GBP 15,000, which will continue to accumulate until BMW AG complies with the information request.

Private Schools’ Practices Are Under the Scrutiny of Turkish Competition Authority

26th January 2023 On 12 January 2023, the Turkish Competition Authority (“TCA”) announced the initiation of two full-fledged investigations concerning the practices of certain private schools. Those investigations reveal that the TCA has been closely monitoring the news on the private schools’ pricing policies which have had wide coverage on the press recently and been on the agenda of the Ministry of Education (“MEB”)^[1]. This piece briefly explains the new investigations as well as the previous investigations of the TCA against the private schools.

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Investigation against the Private French Schools

Upon the preliminary investigation conducted by the TCA, it has been concluded that the pricing practices of Saint-Joseph French High School, Saint Benoît French High School, Notre-Dame de Sion French High School, Saint-Michel French High School and Sainte Pulchérie French High School (“Private French High Schools”) should be further examined in terms of Article 4 of the Law No. 4054 on Protection of Competition (“Competition Law”) (a provision which is similar to Article 101 of the TFEU – i.e. prohibiting the anti-competitive agreements)^[2]. The Private French High Schools’ pricing policies were under the scrutiny of the TCA in two occasions previously through a preliminary investigation^[3] and an individual exemption application^[4]. In 2013, a preliminary investigation was initiated against the Private French High Schools to determine whether these schools (i) determined the school fees through anticompetitive agreements, concerted practices, or decisions of undertakings and (ii) entered into a gentleman’s agreement to prevent students’ transfers among themselves. Regarding the allegation of price fixing, the Private French High Schools disclosed that they met regularly to discuss and agree on various matters such as the prices, pedagogic needs, educational schedules and cultural activities, and decided the school fees jointly. The TCA stressed that the lists for the annual school fees reported to the MEB also supported those statements. The TCA then moved on to assess whether the price fixing by these schools resulted in any anticompetitive object or effect. The TCA first emphasized that the competition in the private education was primarily focused on the quality of the education instead of the price parameter and the fees obtained by private schools were used in order to enhance their quality of education. Furthermore, the TCA also evaluated that the main underlying motivation was to ensure higher quality and service conditions for the students and to avoid from the price parameter becoming a distinguishing factor that would prevent the formation of a joint educational vision. Hence, the TCA concluded that despite its potential to create adverse effect from the competition perspective, the relevant price fixing was not to prevent the competition but to maintain the quality of services. Apart from those, the TCA highlighted that the supply and demand structure in the relevant market primarily based on the factors other than the price competition and there were lots of alternative private schools for consumers. Therefore, the TCA resolved that the determination of fees at a monopolistic rate through an agreement among the schools was not possible in practice as well. Eventually, the TCA decided that (i) the price fixing by the investigated private schools did not have the object or result of preventing the competition, (ii) such prevention was not possible as per the structure of the relevant market, (iii) such practices were aimed to prevail service quality parameter over price regarding the students’ choices.  That said, by noting that if the conduct of a common determination of prices becomes more widespread this may lead to the restriction of competition in the relevant market, the TCA decided to send an opinion letter to the parties with the warning to refrain from any activities that lead to or may lead to anticompetitive results. Regarding the allegation of a gentleman’s agreement, the TCA also reviewed the student acceptance criteria of these schools; based on both the documents obtained through inspections, interviews with school officials and relevant regulations. Accordingly, the TCA concluded that student acceptances and transfers were solely based on the relevant regulations and thus there was no gentleman’s agreement completed between these schools. In 2015, one of the Private French High Schools applied to the TCA for an individual exemption assessment regarding the price fixing practices. In its review, the TCA mainly referred to the 2013 Decision and explained that (i) cooperation agreements/practices towards price determination are considered as per se violation, which precludes them from block or individual exemption assessment, (ii) thus the negative results from such agreements cannot be compensated by efficiency gains and therefore, (iii) there was no need to conduct a detailed assessment on whether the notified scheme fulfils the criteria for an individual exemption. Additionally, the TCA emphasized that there was no need to launch a full-fledged investigation, but it decided to send a warning letter again.

Investigation against the Private Schools in Ankara

In a simultaneous investigation announcement, the TCA provided very brief information about the initiation of another investigation, this time against eight private schools in Ankara, the capital city.^[5] According to the TCA’s statement, the investigation regarding the private schools in Ankara also focuses on the determination of whether there is a violation of Article 4 of the Competition Law, but no further details on the types of the investigated practices were disclosed. The practices of certain private schools and an association of private schools were again under the scrutiny of the TCA before in 2011. At the time, the TCA had initiated a preliminary investigation against those to determine whether these schools engaged in price fixing and jointly determination of the personnel policies through Private Schools Union Association and Ankara Private Schools Association (e.g., wage fixing and no-transfer agreements).^[6] After summarising the findings collected during the preliminary investigation through media publications and on-the-spot inspections, the TCA provided an overview of the increase trends in private school fees in the last five years. In this respect, prior to its assessments on the merits, the TCA first noted that (i) the price increase rates were generally different from each other and (ii) the majority of these schools increased their prices above the average annual CPI changes, while some of the price increases were below this rate. During the preliminary investigations, the TCA obtained agenda notes which referred to meetings held between certain private schools concerning the joint determination of school fees, scholarships, payment due dates and salaries of employees for the year 2001-2002. While emphasising that such meetings could be considered as anticompetitive within the scope of Article 4 of the Competition Law, the TCA evaluated that it was not possible to take any action based on the documents obtained since the statute of limitations had lapsed. The TCA also found information and documents relating to fee discussions during meetings within Private Schools Union Association (“PSUA”) and Ankara Private Schools Association. Furthermore, certain officers were interviewed during the investigation and they stated that (i) matters relating to fees were discussed during association meetings, (ii) generally no written decisions were issued but matters were discussed verbally. Lastly, the TCA found that associations were ‘recommending’ price increases to its members, including for example, raising the prices to a certain level above the CPI. In that context, after a brief reference to the relevant statements from the documents obtained during the preliminary investigation period (e.g., certain e-mails and media reports), it was noted that the Association conveyed its fee related recommendations and common understanding reached during the meetings in a non-binding advisory decision. Accordingly, following a brief explanation of the concept of concerted practices in Turkish and EU law, the TCA concluded that although these advisory decisions are not binding, they are violations by object and therefore should be evaluated within the scope of Article 4 of the Competition Law. A third category of documents obtained by the TCA related to “Principles of Private Schools” (“PPS”) prepared by the PSUA, which governed acceptance of students as well as employment conditions for teachers. The TCA established that the rules incorporated in the PPS were anticompetitive as they contained restrictions on the (i) employment and transfer of teachers between competing private schools and (ii) fees and scholarships offered to students. In that context, the TCA concluded that the PPS aimed to weaken the bargaining power of consumers and limit their preferences by allowing private schools to act in concert, and made it difficult for teachers working at private schools to transfer to other schools. The TCA then moved on to assess whether an individual exemption could be granted to the rules included in the PPS, under the Article 5 of the Competition Law. In that regard, the TCA emphasised that the mere object of developing the dialogue and goodwill amongst competing undertakings without any benefits for consumers could not be protected under competition law. Conversely, the TCA stated, the rules under PPS did not result in any significant benefits for the consumers and caused damages to consumers as well as teachers working in these schools. Accordingly, the TCA concluded that the principles could not benefit from an individual exemption within the scope of Article 5 of the Competition Law as they limited competition among private schools. Ultimately, the TCA decided that there was no need to launch a full-fledged investigation and sent a warning letter to private schools, Ankara and Istanbul Provincial Directorates of National Education and the PSUA.

Conclusion

The initiation of the two full-fledged investigations concerning the practices of certain private schools represents a markedly different approach by the TCA, compared to its previous decisions. As explained above, the practices of private schools were under TCA’s scrutiny previously, particularly between the years 2011 to 2015. However, the mentioned preliminary investigations had not led the TCA to initiate a full-fledged investigation regarding the practices of private schools. Following the announcement of the full-fledged investigations, it remains to be seen whether the TCA is set to change its previous approach.

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[1] See the recent amendment to Regulation on Private Educational Institutions by MEB, published on the Official Gazette, dated 06 January 2023 and numbered 32065. The amended rules revise the maximum increase rate that private schools can apply to their respective fees. Accordingly, the MEB will determine a maximum increase rate, by taking the annual consumer price index (“CPI”) into account. The repealed rule had established that the increase rates shall be determined at maximum 5% over the PPI+CPI/2 of the previous year. (https://www.resmigazete.gov.tr/eskiler/2023/01/20230106-4.htm). [2] See the TCA’s announcement: https://www.rekabet.gov.tr/tr/Guncel/ozel-saint-joseph-fransiz-lisesi-ozel-sa-6856462c4192ed11a2110050568520f2 [3] Decision dated 19.12.2013 and numbered 13-71/960-407 (“2013 Decision”): https://www.rekabet.gov.tr/Karar?kararId=dfce5cfc-3318-435c-8fae-555ba3acc052 [4] Decision dated 07.07.2015 and numbered 15-28/328-103 (“2015 Decision”): https://www.rekabet.gov.tr/Karar?kararId=f86a1b00-512a-43cd-bbbb-b3a36bc6a606 [5] See the TCA’s announcement: https://www.rekabet.gov.tr/tr/Guncel/ankara-merkezli-olarak-faaliyet-gosteren-c985ce9f4192ed11a2110050568520f2 [6] Decision dated 03.03.2011 and numbered 11-12/226-76 (“2011 Decision”): https://www.rekabet.gov.tr/Karar?kararId=7557b1b6-700b-4ffc-858b-bc832991cadd

Trendyol Avoids a Full-Fledged Investigation by the Turkish Competition Authority and Gets Block Exemption

26th January 2023 On 17 January 2023, the Turkish Competition Authority (“TCA”) announced its reasoned decision rendered as a result of the preliminary investigation that was conducted against DSM Grup Danışmanlık İletişim ve Satış Ticaret AŞ (“Trendyol”).[1] The preliminary investigation was initiated pursuant to a confidential complaint which alleged that Trendyol violated Articles 4 and 6 of Law No. 4054 on Protection of Competition (“Competition Law”) in the market for online food and supermarket order. This piece briefly explains the (i) dominance and abuse of dominance, (ii) block exemption and (iii) full-fledged investigation related assessments of the TCA in its reasoned decision.

Legal Briefings

• Q&A with Dr. Fevzi Toksoy and Bahadir Balki

  What do you think about the ‘technology undertaking’ exception to Turkey’s merger control regime? With the adoption of this exception, the TCA exempts certain transactions involving a takeover of a technology undertaking from the target-wise turnover thresholds. Competition authorities worldwide have long been discussing about tackling the so-called ‘killer acquisitions’. While the German and Austrian …

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Comparative Guides

• Turkey: International Trade

  Published: December 2023

  Authors: M. Fevzi ToksoyBahadır BalkıErtuğrul Can Canbolat

  This country-specific Q&A provides an overview of International Trade laws and regulations applicable in Turkey.