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18 March 2021
In September 2011 the Turkish Competition Authority initiated a preliminary investigation into Mey İçki, a subsidiary of Diageo plc, in order to decide whether it had violated Article 6 of Law 4054 on the Protection of Competition in the Turkish raki (ie, a traditional Turkish spirit) market. In November 2011 the Competition Board found that there was no need for a full-fledged investigation. However, at this point, one competitor had initiated an appeal process against the board's no-go decision. In November 2018 the Ankara High State Court annulled the board's no-go decision by a majority of votes.
In May 2019 the Competition Board initiated an investigation against Mey İçki in order to comply with the Ankara High State Court's decision. The investigation explored the validity of allegations of abuse of dominance in the Turkish raki market.
On 12 March 2021, after a 10-month investigation, the Competition Board found by unanimous vote that Mey İçki:
The case handlers alleged that Mey İçki enjoyed dominance in the Turkish raki market. Mey İçki had allegedly engaged in exclusionary practices against competitors through:
The Competition Board had already examined Mey İçki's alleged practices and imposed a fine in 2014 (14-21/410-178). The alleged practices belong to the exact same period and the same market in both decisions.
Mey İçki demonstrated the investigation's lack of both procedural and substantial grounds, emphasising the non bis in idem principle in both its oral and written defences. Mey İçki argued that the investigation had been damaged by double jeopardy as:
The Competition Board found that there had been a violation through abuse of dominance but accepted Mey İçki's non bis in idem defence and concluded that Mey İçki should not be subject to a further administrative monetary fine under Article 16 of Law 4054.
While the reasoned decision is not yet available, the Competition Board acknowledged that the non bis in idem principle should be applied. Therefore, the decision could set a landmark precedent regarding the interpretation of the non bis in idem principle under the Turkish competition law regime. The reasoned decision, which is expected to be published in the following months, is likely to provide insight into the direction that Turkish competition enforcement will take in the coming years with regard to the non bis in idem principle.
For further information on this topic please contact Gönenç Gürkaynak at ELIG Gürkaynak Attorneys-at-Law by telephone (+90 212 327 17 24) or email (firstname.lastname@example.org). The ELIG Gürkaynak Attorneys-at-Law website can be accessed at www.elig.com.
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