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Two-minute Recap Of Recent Developments In Turkish Competition Law – July 2022 – Antitrust, EU Competition



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August 2022 – In July, the Turkish
Competition Board (the “Board“) approved
eight merger control filings and published 32 reasoned decisions.
The highlight of Turkish competition law in July is that many
investigations were concluded.

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Another excessive pricing allegation against
Sahibinden.com

On 27 July, the Board announced that it has launched an
investigation against Sahibinden.com, a leading online marketplace
for vehicle/real estate sales and rental services, based on the
allegation that it had abused its dominant position in the online
platform service market for real estate and vehicle sales/rental
services by applying excessive prices. This decision once again
demonstrates that digital markets remain a focus of the Board.

Sahibinden.com has previously been subject to Board decisions on
allegations that it abused its dominant position by applying
excessive pricing in 2018 and 2020. In the first excessive pricing
case, the Board initially fined Sahibinden.com for excessive rates
for listings, but this decision was annulled by the Ankara 6th
Administrative Court. In its reassessment of the annulled decision
the Board decided not to impose an administrative monetary against
Sahibinden.com in 2021. The Board also concluded the excessive
pricing case in 2021 without imposing any fines.

Although no fines were imposed, the Board indicated in its
previous decisions that Sahibinden.com is in a dominant position in
the online platform service market for vehicle sales and real
estate sales/rental activities. We look forward to the conclusion
of this new investigation to shed more light on excessive pricing
allegations in Turkey’s digital industry.

The Board says no safe harbour for bread producer

Following a preliminary investigation launched by the Board in
2021, the Board has determined that Unmaş, a bread
manufacturer, was involved in actions aimed at de facto exclusivity
at retail outlets, but that as such practices benefited from a
block exemption, there was no need to launch a full-fledged
investigation.

In the same decision, the Board also decided to initiate a
review to determine whether Unmaş benefits from the block
exemption, even if the market share of Unmaş in the
“packaged bread market” was less than 40% (the previous
market share threshold to be able to qualify for the vertical block
exemption safe harbour, now reduced to 30%). The Board stated that
in cases where undertakings have significant market power and the
barriers to entry is high, it will be difficult to meet the
necessary conditions for the block exemption, and accordingly the
packaged bread market must be examined more closely and the block
exemption that Unmaş benefits from needs to be
re-evaluated.

Although the Board did not find a breach of Turkish Competition
Law under its preliminary investigation, as a result of the review
of the block exemption granted to Unmaş it decided to remove
Unmaş from the scope of the block exemption safe harbour for
vertical agreements, as it was determined that the exclusivity
agreements had effects incompatible with the conditions set out for
the block exemption.

The Board fines online second-hand book sales platform for
abusing its dominance

The Board published a reasoned decision regarding the
investigation launched against Nadirkitap, an online second-hand
book sales platform. The Board imposed an administrative monetary
fine of approx. EUR 18,860 (TRY 346,765) based on the grounds that
Nadirkitap was indeed in a dominant position in the market for
platform services for second-hand book sales in Turkey and abused
its dominant position.

In the reasoned decision, the Board determined the relevant
market as platform services for second-hand book sales in Turkey on
the grounds that:

  1. new book sales are not substitutable with second-hand book
    sales;

  2. second-hand book sales through traditional channels are not
    substitutable with online sales;

  3. book sales via marketplace platforms are not substitutable with
    sales conducted by undertakings acting on their behalf; and

  4. other marketplace platforms that sell books and other products
    are not substitutable with marketplace platforms that sell only
    books.

As a result of the investigation, the Board concluded that
Nadirkitap unjustifiably prevented booksellers who want to sell
their products via other intermediary service providers to access
book data uploaded to Nadirkitap’s website, which complicates
the activities of competitor intermediary service providers. The
Board also decided that Nadirkitap must provide the relevant
bookseller with the book inventory data, in case of such a request
from the bookseller.

The significance of this decision is that it reveals how the
Board evaluates the relevant markets for marketplace platforms and
the Board’s precedents on data portability. In this respect,
this decision can be considered a pathfinder in terms of
marketplace platforms and data portability issues.

Another investigation concluded with commitment

With its decision dated 12 August 2021, the Board decided to
launch an investigation into the allegation that Tadım
Gıda abused its dominant position in the packaged dried nut
market with exclusionary practices by complicating the activities
of its competitors through interference with the prices of dealers
and determining the resale price.

While the investigation process was on-going, Tadım
Gıda presented a commitment package to initiate the commitment
process regarding the competitive concerns in the file. On 7 July
2022, the Board considered that the commitments in question are
proportional to the competition problems, are suitable for
eliminating these problems, can be fulfilled in a short time, and
can be implemented effectively. Consequently, the Board decided to
conclude its investigation in less than one year by making the
relevant commitment package binding.

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.



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