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.