Introduction

In September 2011 the Turkish Competition Authority initiated a preliminary investigation into Mey Içki, 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 Içki 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.

Competition Board decision

On 12 March 2021, after a 10-month investigation, the Competition Board found by unanimous vote that Mey Içki:

  • held a dominant position in the raki 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 (2008 to 2011). The board held that there was no scope to impose additional administrative monetary fines.

The case handlers alleged that Mey Içki enjoyed dominance in the Turkish raki market. Mey Içki had allegedly engaged in exclusionary practices against competitors through:

  • its discount systems; and
  • its practices, which allegedly prevented competitors' visibility on sales.

The Competition Board had already examined Mey Içki'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 Içki 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 Içki argued that the investigation had been damaged by double jeopardy as:

  • the Competition Board had carried out a second investigation into the same allegations in the same market which had occurred at the same time; and
  • the investigation had created the risk of a duplicated fine.

The Competition Board found that there had been a violation through abuse of dominance but accepted Mey Içki's non bis in idem defence and concluded that Mey Içki should not be subject to a further administrative monetary fine under Article 16 of Law 4054.

Comment

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.