Mr. Gönenç Gürkaynak is a founding partner of ELIG Gürkaynak Attorneys-at-Law, a leading law firm in Istanbul, Turkey. Before founding ELIG Gürkaynak Attorneys-at-Law in 2005, Mr. Gürkaynak worked as an attorney at the Istanbul, New York and Brussels offices of a global law firm for more than eight years.
Mr. Gürkaynak heads the “Regulatory and Compliance” department of ELIG Gürkaynak Attorneys-at-Law. He also holds a teaching position at undergraduate and graduate levels at three different universities in the fields of law and economics, competition law and Anglo-American law.
He has a total of more than 150 international and local articles published in English and in Turkish, and two books, one published on “A Discussion on the Prime Objective of the Turkish Competition Law From a Law & Economics Perspective” by the Turkish Competition Authority, and the other on “Fundamental Concepts of Anglo-American Law” by Legal Publishing.
Mr. Gürkaynak graduated from Ankara University, Faculty of Law in 1997, and was called to the Istanbul Bar in 1998. Mr. Gürkaynak received his LL.M. degree from Harvard Law School, and is qualified to practice in Istanbul, New York, Brussels and England and Wales (currently a non-practising Solicitor).
Istanbul Bar since 1997
New York Bar since 2002
American Bar Association since 2002
Law Society of England and Wales since 2004; and
Brussels Bar since 2004
This article summarises how most-favoured customer (MFC) clauses became a major competition law issue in Turkey, especially for large online platforms, and how the relevant case law has developed. It aims to provide a guide for classifying a range of MFC-like clauses and evaluating the competition law-related risks.
After a 10-month investigation, the Competition Board found by unanimous vote that Mey İçki held a dominant position in the raki (ie, a traditional Turkish spirit) market, had violated Article 6 of Law 4054 and had received an administrative monetary fine for the same strategy in the raki market for the same period. The board held that there was no scope to impose additional administrative monetary fines but accepted Mey İçki's non bis in idem defence.
In June 2020 Law 7246 Amending the Law on the Protection of Competition entered into force and introduced significant changes to Turkish competition law, including with regard to the commitment mechanism. The mechanism aims to address anti-competitive effects in a timely and effective manner and save time and red-tape costs incurred by both the Turkish Competition Authority and undertakings subject to investigation.
In 2018 the Competition Board imposed administrative fines amounting to TL143 million on three retail electricity sales companies (RESCs) and one electricity distribution company for abusing their dominant positions in various markets. In three separate decisions regarding the appeal of the fines, the Ankara 13th Administrative Court rejected all of the claims raised by the RESCs and upheld the board's decision. The decisions may have significant consequences with respect to anti-competitive effects.
The Competition Board recently published its reasoned decision following a preliminary investigation based on allegations that two companies had violated Article 4 of Law 4054 on the Protection of Competition by determining dealers' resale prices, fixing discount rates and limiting the payment methods of their dealers.
After rounds of revisions and failed enactment attempts over a span of several years, the proposal for amendments to Law 4054 on the Protection of Competition has finally been approved by Parliament. According to the proposal's recital, the amendments to Law 4054 aim to embody the Turkish Competition Authority's 20-plus years' enforcement experience and bring Turkish competition law closer to EU competition law.
The Turkish Competition Authority (TCA) recently issued a series of public announcements emphasising that it has observed excessive price increases in the food sector – particularly for fresh fruit and vegetables – during the COVID-19 pandemic. Further, to protect consumers, the TCA has stressed that it will continue to monitor these price increases and the market players that have contributed thereto.
The Competition Board recently published its annual M&A status report, which outlines statistics on merger control decisions with regard to the number of transactions, the parties' country of origin, economic activities and transaction values. The board reviewed a total of 208 mergers and acquisitions in 2019, a 7% reduction compared with 2018.
Two of the three vacant positions on the Competition Board (the competent decision-making organ of the Competition Authority) have now been filled. Despite the Competition Board's existing backlog, the inauguration of the newly appointed members means that it can now proceed with and resolve contentious matters that were pending on its agenda. The lack of quorum will no longer be a limiting factor for the functioning of the board.
The Competition Board recently published the results of its preliminary investigation into a gym franchise business following a complaint that its franchising agreements violated Law 4054 and the Block Exemption Communique on Vertical Agreements. The board ordered the franchiser to revise its non-compete and non-poaching clauses to comply with competition law in terms of duration, geographical area and written consent.
The Competition Board recently fined a fertiliser company for hindering an on-site inspection. The matter concerned whether company officials had been correct in preventing the case handlers from accessing personal email correspondence found in a corporate email account during the on-site inspection which implied that another company had been willing to revise its prices.
The Competition Board recently published its reasoned decision following a preliminary investigation into allegations that çiğ köfte producers in Gaziantep province had restricted competition through anti-competitive behaviour and agreements. The complainant claimed that at a meeting at the Gaziantep Chamber of Commerce, the çiğ köfte producers had determined market prices, and that undertakings which chose not to comply with the determined prices would be penalised.
The Competition Board recently announced its decision following an investigation of five undertakings and one association of undertakings active in cabotage roll-on/roll-off (Ro-Ro) transportation lines in Turkey. The reasoned decision, especially the evaluation on the Ambarli-Topcular Ro-Ro line, is expected to provide enlightening information on the board's reasoning, its views on the definition of a cartel and its approach regarding information exchange.
The Competition Board recently published its annual M&A status report, which outlines statistics concerning merger control decisions with regard to the number of transactions, the parties' country of origin, economic activities and transaction values. The Competition Board reviewed a total of 223 mergers and acquisitions in 2018, which is higher than average and constitutes a 21% increase compared with 2017.
The Competition Board recently published its reasoned decision on the application filed by Vodafone regarding an agreement signed with Superonline. The agreement concerns Vodafone and Superonline granting each other access to their respective servers for wholesale fibre-optic broadband services and providing support services to each other's customers where appropriate.
The Competition Board recently issued its decision regarding retailer TveK's acquisition of rival retailer D&R and its two subsidiaries. In its assessment of potential competition concerns regarding the acquisition, the board examined the relevant market sectors and geographical markets in which the two entities operated and whether the merger would result in TveK acquiring a dominant position.
The Competition Board recently concluded an investigation into allegations of abuse of dominance in the provision of online ad services to commercial customers for the sale and rental of real estate and vehicles. The board concluded by a majority that Sahibinden.com had abused its dominant position. The decision could set a landmark precedent in terms of the analysis of excessive pricing in the online sector and is the only decision of its kind globally to concern the online ads market.
The Competition Board recently published its reasoned decision following its examination of the Akarlılar family's acquisition of negative control in Mavi Giyim Sanayi ve Ticaret AŞ. In order to assess economic unity, the Competition Board had to examine the parties' economic and family ties; the foundation, composition and nature of these ties; any independent activities; and the parties' unity of interest.
The Competition Board recently published its reasoned decision following a preliminary investigation into allegations that Jotun Boya Sanayi ve Ticaret AŞ had violated Article 4 of Law 4054 on the Protection of Competition. The allegations concerned claims that Jotun had determined the resale prices and sales conditions of authorised dealers and restricted their online sales through a prohibitive provision in its dealership agreements.
The Competition Board recently published its reasoned decision following a preliminary investigation into allegations that Teknosa had violated Law 4054 on the Protection of Competition by restricting İklimSA distributors from selling to the complainant. It was claimed that Teknosa had instructed İklimSA that if its products were sold to the complainant, Teknosa would halt the payment of distribution premiums and end its commercial relationship with İklimSA.
The Competition Board recently published a reasoned decision following its preliminary investigation into whether Yataş Yorgan ve Yatak San ve Tic AŞ had violated Article 4 of Law 4054 on the Protection of Competition. The allegations concerned the claim that Yataş had, through its best price guarantee campaign, restricted competition by acting in cooperation with independent retailers or pressuring them with abusive pricing policies.
The Competition Board recently published its reasoned decision on the Tyre Industrialist Association's application for an exemption for its Waste Management Strategies and Implementation Plan for Worn-out Tyres 2016 to 2020. The board decided that the association's proposal would not limit competition in a manner which would violate Law 4054 on the Protection of Competition and granted an individual five-year exemption.
Following an 18-month investigation, the Competition Board recently found that Mey İçki held a dominant position in the vodka and gin markets. However, the board had already examined Mey İçki's alleged practices and imposed penalties in its earlier decision on the raki market. As such, the board accepted the non bis in idem defence and concluded that Mey İçki should not be subject to an administrative fine.
Following a 16-month investigation, the Competition Board recently published the outcome of a high-profile investigation into the ready-mixed concrete market. After evaluating the evidence, written defences and investigation file, the board decided not to render administrative fines, concluding that none of the undertakings had violated Article 4 of Law 4054.
The Competition Board recently published a reasoned decision following its investigation into whether the Pharmacists' Association and the Pharmacists' Association Commercial Enterprise had violated Article 6 of Law 4054 on the Protection of Competition by abusing their dominant position in the market for the supply of pharmaceuticals from abroad through their exclusivity practices and other actions.
The Competition Authority recently published its annual Mergers and Acquisitions Status Report for 2016. The report reveals that the authority reviewed 209 transactions in 2016. Nine of these involved the privatisation of public companies, while 191 were notifiable M&A transactions (excluding privatisations). This marks an increase compared with 2015, when the Competition Authority examined 159 merger control cases, of which 141 were notifiable transactions (excluding privatisations).
A significant number of consumers prefer to buy products and services online for practical reasons. In order to keep pace with these new market structures, the Competition Board must consider new market definitions for products and services involving digital markets. Moreover, the board must examine the specific dynamics of digital markets while assessing the competitive or anti-competitive effects of relevant cases.
Communique 2017/2 on the Amendment of Communique 2010/4 on Mergers and Acquisitions Subject to the Approval of the Competition Board recently entered into force. Although no statutory rule on whether parties can close a public bid on a listed company before obtaining Competition Board approval existed in Turkey until the communique's promulgation, Competition Board case law had started to clarify this matter. However, legislative guidance on this type of concentration is most welcome.
The New Block Exemption Communique 2017/3 for Vertical Agreements in the Motor Vehicle Sector in Turkey was recently published in the Official Gazette. The communique was triggered by the reform of the restrictive provisions of Law 1400/2002 (particularly with regard to the sale of motor vehicles) in line with EU Regulation 461/2010. The Competition Board is expected to publish a set of guidelines which will provide further details regarding the communique's implementation.
The Turkish Competition Board recently published a decision following its preliminary investigation into allegations of an abuse of dominant position in the basic chromium sulphate market by way of excessive pricing. The decision demonstrates how the competition authorities will evaluate the theory and application of excessive pricing and the factors that they will consider when determining whether there has been an abuse of dominance by way of such practice.
The Competition Authority recently published an inquiry report into the cement sector. The report includes a detailed assessment of the grey cement sector's market structure and the conduct of market players, general background information on cement products and the sector in general and an assessment of the sector's competitive dynamics. The main competition law issues that the report highlights are high price increases and market division.
The Competition Board recently published a reasoned decision on granting negative clearance for the exchange of information obtained from the Interbank Card Centre regarding merchant turnover. In line with previous Competition Board, Council of State and Administrative Court decisions, the decision demonstrates that the authority granted to undertakings by law is not subject to the Protection of Competition Law.
The Competition Board recently published a reasoned decision after a preliminary investigation of oil refiner Türkiye Petrol Rafinerileri AŞ (TUPRA) following allegations by fuel company Akaryakıt Ana Dağıtım Şirketleri Derneği that TUPRA's turnover premium system would further strengthen the largest distributors in the fuel distribution market, where profit margins are relatively low.
The Competition Authority recently published its annual Mergers and Acquisitions Status Report for 2015. The report provides information and a statistical overview of the concentrations that the authority reviewed in 2015, in terms of monetary value, sector, transaction type and the origin of parties. The report reveals that the Competition Authority reviewed 159 transactions in 2015, eight of which involved the privatisation of public companies.
The Competition Board recently published its reasoned decision regarding Anadolu Endüstri Holding AŞ's acquisition of control over Migros Ticaret AŞ. Following an in-depth Phase II review of the transaction due to competition concerns, the board granted conditional approval based on the commitments that Anadolu submitted. The commitments provide further guidance regarding potential remedies for addressing coordination concerns.
The Competition Authority recently issued a draft block exemption communiqué on research and development (R&D) agreements, which sets out revised rules for the block exemption regime applicable to R&D agreements in Turkey. The draft communiqué reflects the authority's practice of closely following developments in EU competition law and attempting to retain harmony between EU and Turkish competition law instruments.
The Competition Board recently conducted a pre-investigation into allegations that the Turkish Football Federation's age restrictions and quotas on footballers in the Third League and the Regional Amateur League were anti-competitive. The board found that the restrictions did not impede the activities of footballers or football clubs, as the scope of the restrictions was limited to those two leagues.
The Competition Board recently granted conditional approval of NV Bekaert SA's acquisition of Pirelli Tyre SpA's steel tyre cord business. This is the first case in which the board has approved commitments aimed at the protection of customers and also sets a precedent as the board's conditional approval was based solely on behavioural remedies provided during the Phase 2 review.
Three places on the Competition Board that were vacant for almost three months have now been filled. The appointments were long awaited as the board has been unable to make decisions on any matter since April 2015, when it lost the required quorum after three members left their positions. Hence, final decisions concerning merger control, pre-investigations and investigations have since been pending.
The Competition Board recently granted full immunity to a member of a cartel that submitted a leniency application immediately after the Competition Authority had launched its investigation. The board's decision establishes that as long as the leniency application has sufficient content and added value for an investigation, the timing of the application is not an obstacle to the grant of full immunity.
The Competition Authority recently published a status report on mergers and acquisitions. The report aims to provide insight into transactions filed with the authority during 2014. Transactions that were notified to the authority but which did not exceed the applicable turnover thresholds were also included. The report shows that the total number of notified transactions in 2014 was similar to that in 2013.
The Competition Authority recently concluded its inquiry into the wholesale and retail electricity market. The inquiry analysed the liberalisation process, the wholesale electricity market, the retail electricity market and relevant institutions. The Competition Authority concluded that liberalisation had not yet created the required level of competitiveness in the wholesale and retail electricity markets.
The Competition Board recently reassessed its decision on the acquisition of Super League broadcasting rights following the 10th Administrative Court of Ankara's suspension of execution decision. The board launched an investigation to determine whether an agreement between the Turkish Football Federation and a broadcasting organisation violated Article 4 of the Law on the Protection of Competition.
The Competition Authority recently published a status report on mergers and acquisitions. The report aims to provide an insight into transactions filed before the authority in the first half of 2014. When compared to the report published in 2013, it is clear that there has been a remarkable decrease in the transactional value of the merger filings notified to the authority.
In a recent decision the 13th Circuit of the High State of Council annulled the Competition Board's decision in Siemens san ve Tic AŞ. This is another example of an action in which the High State of Council has examined the merits of a case. Over the last few years there has been an increasing trend of the administrative courts delving into the details of Competition Board decisions and challenging them on their merits.
The Competition Board recently initiated an inquiry into the cement production sector to identify the source of competitive problems in the cement sector and introduce structural or behavioural solutions to those problems. The main reason for the board's decision is the importance of the cement sector to the construction sector – one of the most important sectors in the domestic economy
The Competition Authority recently published its 15th Annual Activity Report, in which it provided relevant data on the number of cases concluded in 2013. The authority has commented that the number of concluded cases has declined significantly when compared with previous years. In the report, the authority has cited its introduction of two new communiqués as reasons for the decline.
The Competition Authority recently released its Draft Regulation on Administrative Monetary Fines for Infringement of the Law on the Protection of Competition for public consultation. The draft regulation introduces a limit on the definition of 'turnover' and amends the methods for calculating fines. The draft regulation also provides specific examples of serious violations of competition law.
It appears that long-awaited amendments to the Law on the Protection of Competition may finally be on the agenda following a recent announcement by Parliament that a draft law containing the amendments has been officially added to its drafts and proposals list. Among other things, the draft law introduces a de minimis rule and proposes several significant changes to concentration provisions.
The Competition Board recently published its Guidelines on the Conditions Accepted as Mergers and Acquisitions and the Concept of Control. The guidelines discuss a variety of important topics with respect to mergers and acquisitions and the circumstances under which concentrations must be notified under the Law on the Protection of Competition. These topics include negative control and conditions of full functionality.
One of the most significant developments with respect to Turkish competition law over the past two months has been the opening of public consultation in relation to the Draft Guidelines on the Abusive Exclusionary Conduct by Dominant Undertakings. Although the guidelines are still in draft form, they aim to address the lack of competition legislation on the behaviour of dominant undertakings.
The Competition Board has just announced the outcome of its investigation against nine Turkish paper recycling companies, including Modern Karton, the largest in the sector. The investigation has been closed without a monetary fine. As the board accepted the defence that the cumulative conditions of individual exemption were met, the board granted a three-year exemption to each defendant.
The Competition Board has published its reasoned decision regarding two undertakings active in the sodium sulphate and raw salt sectors. The decision includes information that sheds light on the treatment of leniency applications, as well as on when executives and employees of parties will be considered to have had a determining effect on the creation of the violation.
In a further indication that modernisation will be one of the Competition Authority's top priorities in 2013, it recently issued secondary legislation concerning the merger control regime. The revised guidelines reflect the changes introduced to the merger control regime in recent months, including amended turnover thresholds and the removal of the 'affected market' criterion in notifiability analysis.
Following the introduction of the Regulation on Active Cooperation for Discovery of Cartels, the Competition Authority has issued a set of guidelines, which aim to provide certainty in interpretation, reduce uncertainty in practice and provide guidance for undertakings so that applicants can benefit from the leniency programme more efficiently, as a requirement of the transparency principle.
After almost two-and-a-half years of investigation, the Competition Board recently announced the outcome of its high-profile investigation against 12 Turkish banks. The total fine amounted to an unprecedented TRY1.1 billion and broke a number of records in the process, including single-handedly surpassing the sum of all fines imposed in the history of Turkish antitrust enforcement.
The appellate court has ruled that a recent Competition Board decision demonstrated a lack of sufficient justification concerning the determination of the basic level of a fine and the effects of mitigating or aggravating factors on the calculation of such fine. The ruling offers an preliminary insight into the way in which the higher administrative courts will interpret the board's application of the law concerning such fines.
Ever since the Competition Authority amended the communiqué setting out mergers and acquisitions subject to approval, it had been debated whether the revised jurisdictional thresholds would decrease the authority's workload in relation to merger control cases. As soon as figures were available, it became clear that the TRY5 million threshold for approval was too low; therefore, the authority has now amended the thresholds.
The most significant development with respect to competition law in Turkey over the last two months is the announcement for public consultation of two important secondary legislative instruments. While these are still in draft form and have not been conclusively enacted by the authority, they point towards the authority's increased willingness to create greater predictability with respect to horizontal cooperation.
Steps have recently been taken to implement Turkey's immunity regime and leniency programme, with the publication of the Draft Guideline Regarding the Regulation on Active Cooperation for the Purpose of Discovery of Cartels. As cases in which the relevant parties have applied for leniency are still rather minimal, it is hoped that the guideline will clarify the regulation and increase the application of leniency in cartel cases.
In Turkey, the unilateral conduct of a dominant undertaking is restricted by Article 6 of the Law on the Protection of Competition. The board has recently issued decisions concerning predatory pricing in the airline and transport sectors. It also recently concluded additional investigations into competition in the airline, cement and sodium sulphate and raw salt sectors.
The Competition Board recently imposed fines totalling approximately TRY50 million on 10 undertakings operating in the cement sector. It was alleged that the undertakings had increased cement prices through an agreement. Once the board's reasoned decision has been published, it is expected to shed light on the board's latest approach to standards of proof in cartel cases within the sector.
The Competition Authority recently published a report covering assessments and suggestions regarding 11 markets across the energy, transportation, IT, banking, pharmaceuticals and fast-moving consumer goods retail sectors. Each market is discussed in relation to the three main issues that restrict competition - namely, market structure, applicable regulations and the behaviour of players in the market.
The Turkish Competition Board recently concluded its investigation against Turkish Airlines with no condemnation. The board decided that the company did not abuse its dominant position by engaging in exclusionary practices against a competing undertaking. However, until the reasoned decision is published, it remains unclear how the balance between the allegations and defences resulted in this conclusion.
In an attempt to strengthen relations between the Communication Technologies Authority and the Competition Authority, and to ensure more efficient cooperation between these two independent authorities, a protocol entitled "Cooperation Protocol between the Information and Communication Technologies Authority and the Competition Authority" was recently signed.
The Competition Board recently announced a decision regarding the Automotive Distributors Association. The decision is important as in the first half of 2011, the board fined undertakings active in the motor vehicle sector for exchanging sensitive commercial information between them. Therefore, it could be said that through this decision, the board has set the ground rules for information exchanges in the motor vehicle sector.
The Decree Law on the Organisation and Duties of the Ministry of European Union and Amendment of Some Laws and Decree Laws has raised certain questions regarding the administrative remedies available against actions of the Competition Authority and the judicial supervision of such actions.
The Competition Board recently rendered its decision regarding Turkcell İletişim Hizmetleri AŞ, Turkey's largest Global System for Mobile Communications operator. Turkcell was found to be abusing its dominant position and a record fine of TRY91.1 million (around €40 million) was imposed. The fine is the highest ever imposed by the board against a single undertaking.
The Competition Authority has been conducting a sector inquiry into the fast-moving consumer goods retail sector for some time now and has recently published its preliminary report on the sector. The authority's preliminary opinions include comments on notifiability thresholds for mergers and acquisitions, the requirement for a code of conduct and annual submissions of supply agreements.
The Competition Board recently concluded its investigations in the Turkish motor vehicles and banking sectors. The board imposed record fines against the undertakings in both investigations - totalling approximately TRY277 million in the first investigation and TRY72 million in the second investigation.
The Competition Authority has launched a public consultation on its draft guideline for remedies that it may accept in respect of mergers and acquisitions. The draft guideline sets out conditions for acceptable commitments, including divestiture of business units and structural and behavioural remedies, including the removal of links with competitors, access remedies and changes to long-term exclusive contracts.
In the past, when investigated acts were criminally prosecutable, the Competition Authority typically filed a report to the relevant public prosecutor's office to have the act criminally pursued after the antitrust investigation. However, recent indications suggest that the authority has changed its position. It seems that authority officials are now taking action before the antitrust investigation has been completed.
The recently published Communiqué 2010/4 on Mergers and Acquisitions Subject to the Approval of the Turkish Competition Board introduces a new merger control regime to the Turkish competition law system. This update looks at 10 fundamental changes implemented by the new merger control regime, which will come into effect on January 1 2011.
While the Competition Board has the authority to search the premises of undertakings and request information or documents from them, the law makes no reference to the nature of attorney-client communication. Although attorney-client privileged information and documents are protected in other areas of Turkish law, competition legislation and, until recently, the precedents of the board did not explicitly provide for such protection.
The Competition Authority has enacted the Communiqué on the Regulation of the Right to Access to File and the Protection of Commercial Secrets. The communiqué determines the procedures and principles for parties that are subject to an investigation or a second-phase investigation to exercise their rights to access to file, and further regulates the protection of information classified as commercial secrets.
Despite first hinting at changes to the Communiqué on Mergers and Acquisitions Requiring the Approval of the Competition Board in November 2007, over the last two years the Competition Authority has taken no steps towards realizing its long-awaited intention to restructure the merger control regime. However, in mid-February 2010 it broke its silence and unveiled the draft communiqué.
Following amendments to the Law on the Protection of Competition, which brought into effect the Law Amending Various Laws for Harmonization with Fundamental Criminal Laws, the Turkish antitrust regime has introduced a stricter fining regime and established a leniency and immunity programme for companies. In August 2009 the board revealed the first of four major cartel investigations.
Since the Law on the Protection of Competition came into force in 1994, there has been concern that the competition law regime lacks secondary legislation. However, over the past two years the Competition Authority has attempted to address this problem by issuing back-to-back regulations and guidelines. Its latest piece of legislation is the extended version of the Guidelines on Vertical Agreements.
The Competition Board has finalized its investigation into the Turkish flat steel market. As a result of its investigation, the board has fined three leading flat steel producers. The fine was based on the fact that the existing shareholding structures of two of the undertakings enabled them to conduct coordinated market behaviour in the flat steel market.
Recent amendments to the Law on the Protection of Competition introduced a stricter fining regime, together with a leniency and immunity programme for infringing companies. Steps are now being taken to implement this new and revised legislation.
The Competition Board does not limit the scope of acquisitions involving straightforward share transfers. Instead, it defines transactions involving the acquisition of assets as the "acquisition or control by an entity or a person of another undertaking’s assets or a part or all of its shares or instruments granting it management rights".
The Competition Board recently fined an economic unit comprising two leading players in the wholesale and retail broadband internet access markets for abuse of its dominant position. The fine imposed is based on the economic unit’s turnover generated in the relevant product market for the fiscal year 2007, rather than its overall turnover.
The Turkish merger control regime is heavily influenced by EU merger control regime principles. However, while Article 3(1) of the EU Merger Regulation explicitly defines a ‘concentration’ as covering only those operations that bring about a lasting change in the control of the undertakings concerned, Article 2 of Communiqué 1997/1 appears to have omitted this important element.
Law 5728 Amending Certain Laws for Harmonization with the Fundamental Criminal Laws entered into force in February 2008. The new law revised Law 4054 on the Protection of Competition and entitles the Competition Board to impose turnover-based monetary fines on any acquirer that implements a notifiable concentration before obtaining the board’s approval.
The Competition Board recently held that due to Unilever's dominant position, its exclusive agreements with sales points and its well-established commercial practices aimed at creating de facto exclusivity could not benefit from the Block Exemption Communiqué 2002/2 with regard to vertical agreements. This is the fourth intervention by the board in the last 10 months.
A new law introduces two changes that will have a far-reaching effect on competition law: the introduction of a leniency and immunity mechanism and a shift from fixed fines to turnover-based fines with a greater deterrent effect. Further amendments clarify the question of which party to a merger or acquisition is liable for a fine if the transaction closes in violation of a suspension requirement.
The Turkish Competition Authority has launched a public consultation on the Competition Board Communiqué on the Mergers and Acquisitions Subject to the Permission of the Competition Board by way of a discussion paper proposing substantial changes to the principles of the current Turkish merger control regime.
The Competition Authority has launched a public consultation on draft guidelines for the calculation of fines imposed on undertakings and associations of undertakings infringing Articles 4 and 6 of Law 4054 on the Protection of Competition. The competition law does not provide detailed normative legislation on this issue.
Turkish competition law does not contain applicable legislation concerning ancillary restraints. Therefore, previous decisions provide the only evidence of the Competition Board's approach to this delicate issue. Decisions show that the board follows the EU approach to confidentiality clauses, with some local nuances.
The new Block Exemption Communiqué for Vertical Agreements and Concerted Practices in the Motor Vehicle Sector covers vertical agreements for the purchase, sale and resale of lubricants in the motor vehicle sector. Under the new approach, lubricant manufacturers are required to modify their vertical agreements to take account of the block exemption conditions laid down in the communiqué.
Major players in the cement sector have been subject to severe fines on many occasions for being party to restrictive agreements, concerted practices and restrictive vertical arrangements. However, the Competition Board has broken away from its own precedent in three recent decisions relating to investigations conducted in the cement and ready-made concrete markets.
As part of the framework for harmonization with EU competition rules, the Competition Authority has announced that it is to undertake certain changes to the vertical block exemption system. The authority has published a draft communiqué proposing the introduction of market share thresholds to the application of the Block Exemption Communiqué on Vertical Agreements.
During the privatization of Turkish Telecommunications AS, the Competition Board issued an opinion which envisaged the separation of internet-related services. Consequently, TTNet (the Turkish Telecommunications division in charge of internet services) recently became a separate legal entity. This represents a significant step towards the liberalization of the electronic communications sector.
New trends concerning ancillary restraints in the merger control review procedure indicate that the Competition Authority is becoming increasingly concerned with the business impact of its ancillary restraints analysis. The authority may thus be expected to move towards a case-by-case analysis of ancillary restraints, rather than applying the same formula to every case.
Block Exemption Communiqué 2005/4 on Vertical Agreements and Concerted Practices in the Motor Vehicle Sector came into force in January 2006, replacing Communiqué 1998/3 on Motor Vehicle Distribution and Service Agreements. The new legislation was passed in the hope of introducing a more competitive environment to the motor vehicles sector.
A recent decision of the Competition Board on granting exemptions has shown that the Competition Authority is open to arguments in favour of the revision of recent decisions following changes in the relevant market structure. The decision establishes legal certainty and signals to the market that formal requests for the reassessment of exemption conditions are welcome.
On December 20 2005 the Competition Board issued three prohibition decisions relating to acquisitions in the cement sector. The board based its decisions to reject the sales on a dominance test considering the narrow geographical markets defined according to the Elzinga-Hogarty shipment test.
The Data Protection Authority recently published two guidelines on the implementation of Law 6698 on the Protection of Personal Data on its website. Although these guidelines are not pieces of legislation or legally binding, they include detailed information on the implementation of data protection concepts and procedures regulated under the law. Therefore, it is important to review these guidelines to understand the Data Protection Authority's perspective on data protection-related obligations.
Following the enactment of Law 6698 on the Protection of Personal Data, Turkey is preparing relevant secondary legislation. The Draft Regulation on the Data Controllers' Registry and the Draft Regulation on the Erasure, Destruction or Anonymisation of Personal Data were recently published on the website of the Data Protection Authority (DPA) for public consultation. The DPA is also organising meetings with the public and private sectors to gather their opinions and comments on the regulations.
Under the Data Protection Law, data controllers must take all necessary technical and administrative measures to ensure an adequate level of security to prevent unlawful processing of and access to personal data and to safeguard such data. Data controllers should provide the required supervision within their own institution or agency or outsource this service to an independent third party to ensure compliance with the Data Protection Law.
One of the many obligations imposed on data controllers by Law 6698 on the Protection of Personal Data is to provide certain information to data subjects during the collection of their personal data, including the identity of the data controller and its legal representative and to whom and for what purpose the processed personal data can be transferred. These provisions are in line with the EU Data Protection Directive (95/46/EC), with certain distinctions.
Law 6698 on the Protection of Personal Data applies to real persons whose personal data is processed and real persons and legal entities that process this data. Although the law was based closely on the EU Data Protection Directive, there are clear legislative differences between the two, which will result in major differences in practice. Further, the law's provisions require further clarification in order to be implemented correctly.
The Data Protection Law provides exemptions that apply when personal data is processed in the context of national defence or public safety and allows personal data to be transferred abroad if the interests of Turkey or the data subject will not be seriously undermined. However, the broad scope of these exemptions could result in violations of Article 20 of the Constitution, under which the protection of personal data is a basic human right.
The recently enacted Data Protection Law regulates the transfer of personal data abroad. In principle, personal data cannot be transferred abroad without the explicit consent of the data subject. However, exemptions include if the country to which personal data will be transferred provides an adequate level of protection or data controllers in Turkey and the country in question can guarantee an adequate level of protection.
Parliament recently approved the Data Protection Law, the first piece of dedicated general data protection legislation in Turkey. The law's main aim is to protect fundamental rights and freedoms regarding the processing of personal data – particularly regarding the right to privacy – and to regulate the procedures, principles and obligations that must be followed by real persons and legal entities that process personal data.
The Law on Ratification of the Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data of the Council of Europe recently came into force. The convention does not apply to the automatic processing of personal data that is realised by natural persons exclusively for their personal use or household purposes. However, it does apply to personal data which is not processed automatically.
Amendments to the Regulation on Payment Services and Electronic Money Issuance and Payment Institutions were recently introduced regarding one-off payment transactions and frame contracts. As payment services are new for Turkey, it is likely that further amendments to the secondary legislation will be required based on the needs of consumers and the payment services sector.
The enactment of the Commercial Advertisements and Unfair Commercial Practices Regulation – which removes the ban on comparative advertising and includes a provision allowing the use of the goods, trademarks, trade names and services of competitors in ads – has been postponed until the end of 2016. Advertisers are advised to shelve their marketing plans for the comparative marketing era until 2017.
The Ministry of Customs and Trade recently issued the Commercial Advertisements and Unfair Commercial Practices Regulation, which has removed the ban on comparative advertising and includes a provision that allows the use of the goods, trademarks, trade names and services of competitors in ads. The provision will enter into force in January 2016 and may result in legal disputes between competitors.
Article 8(A) of Law 5651 allows for access bans to be imposed on online content based on national security concerns. However, the disproportionality of imposing an access ban on an entire website has been established by the Constitutional Court and the article therefore contradicts the principles that the court previously set out regarding the imposition of access bans on online content.
The Ministry of Customs and Trade recently published the Draft Regulation on Commercial Communication and Commercial Electronic Communications for public review. The aim is to clarify the commercial communications practices set out under Law 6563 on the Regulation of Electronic Commerce Law and to prevent unsolicited electronic marketing communications.
A new regulation on distance contracts recently came into force. It is part of the consumer protection regime in line with the European Union, where distance contracts are regulated under the EU Consumer Rights Directive. Many of the new regulation's provisions have been adopted from the directive and mark a step forward for Turkey's legal compliance efforts with EU legislation.
A new amendment to Law 5651 on the Regulation of Broadcasts via Internet and Prevention of Crimes Committed through Such Broadcasts has recently been proposed. The amendment grants authority to an administrative body to remove and place an access ban on online content without a prior judicial audit, but the proposed change contradicts a number of Constitutional Court decisions.
Twenty-five million national eIDs are expected to be delivered to Turkish citizens under the Council of Ministers' Annual Plan for 2015. However, the lack of specific legislation for national eIDs may have legal ramifications in the near future, especially in the context of privacy and data protection, as Turkey has no dedicated privacy and data protection law.
Law 6563 on the Regulation of Electronic Commerce has finally been ratified in the National Assembly, after four years on the agenda. The law focuses on the obligation to provide information regarding contracts which are entered into electronically and the liability and obligations of online service providers, and unsolicited commercial electronic marketing.
While Turkey has certain sector-specific regulations, it does not yet have dedicated data protection legislation. However, it has signed the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data of the Council of Europe and has developed the Draft Law on the Protection of Personal Data, both of which are awaiting ratification.
In Turkey, cloud computing services are not specifically regulated and 'cloud computing' is not defined. However, the cloud computing business model may be considered to be an electronic communications service under Turkish law, and therefore such service providers may be required to obtain authorisation from governmental bodies.