ACTECON

ACTECON is proud to be a partner of the Lear Competition Festival (LCF) to be held in Rome between 26 and 29 September 2023.

It is possible to develop technology to provide sufficient and safe access to food for the rapidly increasing population with limited agricultural resources, only through Research and Development (“R&D”) and innovation activities.

Introduction The TCA has been initiating one investigation after another into sectors that closely affect the lives of consumers in recent times.

The Fast-Moving Consumer Goods ("FMCG") retailing sector is one of the most important areas under the TCA’s focus due to its structure and key role in the economy.

The Decision of the Information and Communication Technologies and Communication Board (“Board”) on Procedures and Principles Regarding Social Network Provider[1] (“Decision”) entered into force on 1 April.

Introduction On 16 March 2023, the Ministry of Treasury and Finance (Turkish Revenue Administration) published the General Communiqué on Application of Rebar Monitoring System.

On 31 March 2023, a Presidential decision was announced in Official Gazette with respect to the enactment of the Regulation on the Procedures and Principles Regarding the Implementation, Coordination,

The Constitutional Court of Turkey (the “Court”) delivered a judgment on 9 November 2022[1] regarding the action for an annulment application made by the 137 members of the Grand National Assembly of Turkey against amendments introduced in 2020 to various articles of Law No. 4054 on the Protection of Competition (“Competition Law”).

The interpretation of the exemption brought for “technology undertakings” took a sudden turn with the Turkish Competition Authority’s (“TCA”) recent Berkshire Hathaway Decision (15.09.2022, 22-42/625-261) which resolved that the exception brought to the merger control thresholds by the recent amendment for the technology undertakings shall be considered applicable, even if the activities of the target undertaking that can be classified to fall under the definition of technology undertaking, are carried out in other geographical markets than Turkey.

Following the introduction of the settlement procedure, the number of undertakings applying for settlement has been increasing consistently. In this respect, the Turkish Competition Authority’s (“TCA”) evaluations regarding the implementation of the settlement procedure have become an object of curiosity as the investigations that ended with settlement decisions continue to be announced on the official website of the TCA.

The settlement and commitment procedures have been increasingly utilized within the decisions of the Turkish Competition Authority (“TCA”), but the adoption has been debated since 2014, when the mechanisms came to the agenda of the parliament but were refused after long discussions.

The Turkish Competition Authority (“TCA”) launched a full-fledged investigation (“Investigation”) against Arabam Com İnternet ve Bilgi Hizmetleri A.Ş. (“Arabam.com”), Vava Cars Turkey Otomotiv A.Ş. (“VAVA CARS”), Araba Sepeti Otomotiv Bilişim Danışmanlık Hizmetleri Sanayi ve Ticaret A.Ş. (“KAVAK”), and Letgo Mobil İnternet Servisleri ve Ticaret A.Ş. (“Letgo”), which operate in the purchase and sales of second-hand passenger cars via their online platforms to determine whether these undertakings violated Article 4 of  Law No. 4054 on the Protection of Competition (“Competition Law”).

On 06.03.2023, the Turkish Competition Authority ("TCA”) announced its decision to fine Elon Musk due to failure to notify the $44 billion deal to acquire Twitter. The TCA’s reasoned decision is not available for the time being but English version of the TCA’s announcement in terms of the fining decision reads as following:

Following the introduction of the settlement procedure, the number of undertakings applying for settlement has been increasing consistently. In this respect, the Turkish Competition Authority’s (“TCA”) evaluations regarding the implementation of the settlement procedure have become an object of curiosity as the investigations that ended with settlement decisions continue to be announced on the official website of the TCA. Two reasoned decisions published on 17 January 2023, were indeed significant in this context as the administrative fines were reduced to a record-breaking extent (a total of 60% for Kınık Maden Suları A.Ş. (“Kınık”) and %55 for Beypazarı İçecek Pazarlama Ambalaj Turizm Petrol İnşaat Sanayi ve Ticaret A.Ş. (“Beypazarı”)) within the simultaneous implementation of the settlement and leniency procedures.

The interpretation of the exemption brought for “technology undertakings” took a sudden turn with the Turkish Competition Authority’s (“TCA”) recent Berkshire Hathaway Decision (15.09.2022, 22-42/625-261) which resolved that the exception brought to the merger control thresholds by the recent amendment for the technology undertakings shall be considered applicable, even if the activities of the target undertaking that can be classified to fall under the definition of technology undertaking, are carried out in other geographical markets than Turkey.

On 31 January 2023, Turkish Competition Authority’s (“TCA”) decision dated 21 July 2022 and numbered 22-33/526-212 regarding a preliminary investigation into the car rental services market (the “Decision”) was published on the TCA’S official website. Back in 2020, the TCA started this preliminary investigation in order to determine whether the undertakings that are engaged in car rental activities violated Article 4 of Law No. 4054 on the Protection of Competition (“Competition Law”). Within this scope, the TCA conducted on-site inspections on the premises of twelve undertakings and took copies of more than a hundred findings. In the Decision, the TCA concluded that there was no evidence showing that undertakings operating in the car rental services market were party to an exchange of information which restricted competition, therefore, there was no need to launch a full-fledged investigation.

In recent years, competition authorities around the world have been scrutinising new types of behaviour that might be deemed abusive within the context of antitrust laws. Although those relating to digital markets receive the most attention, not a day passes by without a surprising decision announced by the authorities or competent courts. The decision of the Ankara 7th Administrative Court of First Instance[1] (“CFI” or the “Court”) requiring the Turkish Competition Authority (“TCA”) to investigate allegations of denigration and deceptive practices can be considered one of them. In this blog post, we examine the TCA’s case law to illustrate its general approach towards such allegations in previous decisions. Before delving into the details of the mentioned case, it must be stressed that in line with the approaches adopted by several competition authorities in the EU, the TCA highlights in its decisions that denigration and deceptive practices by dominant companies actually can be a concern of competition law.

On 20.12.2022, The Turkish Constitutional Court’s (“Constitutional Court”) decision concerning the right to an effective remedy in connection to the right to request protection of the data subject’s personal data within the scope of the right to respect for private life was published in the Official Gazette[1]. In its decision, the Constitutional Court established that the failure to examine the merits of an applicant’s lawsuit renders a theoretically available remedy ineffective. In other words, it was determined that a remedy which can be considered effective at the theoretical level loses its capacity to offer a chance of success due to the interpretation of the courts.

The Turkish Competition Authority’s (“TCA“) Mergers and Acquisitions Overview Report for 2021 (“Report”) has been published at the TCA’s official website on January 7, 2022. The Report provides an overview of the TCA’s activities regarding M&A transactions and includes brief information on the merger control filings by making comparisons between 2021 and previous years in different aspects such as the position of Turkish and foreign companies in the market and value and total number of the transactions notified to the TCA conducted in various sectors. Considering the value of Turkish-to-foreign transactions as well as foreign investments in the Turkish companies in 2021, it is seen that the foreign investors have been showing their interest to Turkish market again after a year of recession.

In recent weeks, highly praised opinion ("Opinion”) of the Advocate General Rantos, which was originally published in French, is released in English.[1] In this article, we summarized the opinion of the Advocate General in four short sections and, supplemented each section with the decisional practice of the Turkish Competition Authority (the “TCA”) as a comparison benchmark.

2021 has been a busy year in many aspects, including competition law and policy in the Republic of Turkey. The Turkish Competition Authority ("TCA") developed and adopted its secondary legislation in response to amendments to Law No. 4054 on Protection of Competition ("Turkish Competition Law")[1]. These recent developments on the secondary legislation include (i) the introduction of the Regulation on the Settlement Procedure, the De Minimis Communiqué and the Communiqué on the Commitments, and (ii) amendment of the Block Exemption Communiqué on Vertical Agreements. The TCA also paid close attention to the fast-moving consumer goods market and digital markets.

On 04.03.2022, important amendments/additions has been introduced to the Communiqué Concerning the Mergers and Acquisitions Calling for the Authorization of the Competition Board (“Communiqué No. 2010/4”). With this article, it is aimed to summarize these latest amendments in the Communiqué No. 2010/4.

The implementation of the settlement mechanism by the Turkish Competition Authority (“TCA”) is becoming more and more common every day ever since the Regulation on the Settlement Procedure for Investigations on Anticompetitive Agreements, Concerted Practices, Decisions and Abuse of Dominant Position ("Settlement Regulation") entered into force on July 15, 2021.  It is evident that the TCA has sped up the implementation of the settlement mechanism and is looking forward to applying this mechanism effectively. 

A lot has changed in the outlook of fintech regulatory ecosystem since the last four months in Turkey. Starting from Central Bank’s Regulation on Payment Services and Electronic Money and Payment Service Providers; Turkish Competition Authority, with its game-changing Report on Financial Technologies in Payment Services, and Banking Regulation and Supervision Agency (“BRSA”), issuer of the Rules on the Operation of Digital Banks and Service Model Banking, have been vigorous for setting the rules of the game in fintech industry. Finally, the Finance Office of Turkish Presidency’s Fintech Ecosystem Status Report has revealed the upcoming National Fintech Strategy Paper’s fundamental aims, along with the good news on the establishment of Istanbul Finance and Technology Base. In this brief, we summarise the latest developments in Fintech industry from Turkey.

The intersection between intellectual property and competition law is always on the agenda of lawmakers. Since there is an imbalance between the exclusivity rights ensured by intellectual property law and anti-competitive practices that the competition law protects, the notion of standard-essential patents (SEP) and a commitment to license these patents on a fair, reasonable and non-discriminatory (FRAND) basis are accepted to preserve the competitive landscape with regard to licensing issues. However, licensors and licensees still have discrepancies on the FRAND terms, and this keeps authorities and courts busy with handling each party’s requests. While it is nearly impossible to satisfy both parties’ demands, recently, we observed that there are footprints of significant regulatory initiatives that would likely shape the nexus between intellectual property and competition law. Indeed, the most influential jurisdictions, the European Union (EU) and the United Kingdom (UK) have launched fresh inquiries concerning the framework of SEP and FRAND. Below we discuss these developments and then elaborate on the Turkish stance related to the matter.

The labor market has gradually increased its place on the agenda of competition law, especially in the last ten years. No-poaching agreements (agreements between competitors to not transfer employees from each other) come first among the elements that constitute the subject of competition law in the labor market. Like the other competition authorities, the Turkish Competition Authority (“TCA”) has also examined no-poaching agreements in various decisions.

The attorney-client privilege is a common law concept of legal professional privilege in the United States. The concept also exists in civil law countries where there is a secrecy obligation on the part of professionals in guaranteeing that clients’ confidential information is kept secret from disclosure to third parties. The civil law concept of attorney-client privilege is generally regulated under special laws such as legal practitioner acts or through national criminal law. Even if the principle of attorney-client privilege generally has a significant place in all legal systems it creates an ambiguous area within the scope of competition law depending on the country. However, neither Turkey nor France has specific dispositions under their national laws which are Law No. 4054 on the Protection of Competition (“Competition Law”), the French Civil Code (“FCiC”), and the French Commercial Code (“FCoC”). However, for Turkey, the Turkish Competition Authority (“TCA”) sets specific conditions related to this matter, whereas, in France, the French Competition Authority (“FCA”) is still ambiguous on the subject.

Until recent times, an interim measure decision of the Turkish Competition Authority (“TCA”) was something hard to come by. However, with the growing prominence of digital markets and the equally strong response from the competition authorities, that situation has changed as well. The latest experience shows that the TCA is more determined to actively use this tool in an attempt to efficiently respond to conducts in these fast-evolving markets.

As is well known, the Turkish Competition Authority (“TCA”) is authorized to examine all data and documents on electronic platforms and information systems during the on-site inspections pursuant to the amendment dated 16.06.2020 on Article 15 of Law No. 4054 on the Protection of Competition (“Competition Law”). Subsequently, the TCA published the Guidelines on the Examination of Digital Data during On-Site Inspections on 09.10.2020.

The automotive sector has been on the radar of the Turkish Competition Authority (“TCA”) for a long time. In this sense, the TCA conducted an investigation (“Investigation”) regarding the allegations that some undertakings operating in the first-hand and second-hand automotive markets violated Law. No. 4054 on the Protection of Competition (“Competition Law”) via stockpiling and increasing the vehicle prices together.

In accordance with the Turkish Competition Authority’s (“TCA”) decision dated 25.11.2021 and numbered 21-57/796-M, the TCA initiated an investigation against undertakings in the market for fast-moving consumer goods to ascertain whether Article 4 of Law No. 4054 on the Protection of Competition (“Competition Law”) has been violated. Within this scope, the TCA conducted an on-site inspection on 08.12.2021 at the premises of Yeni Mağazacılık A.Ş. (“A101”).

The substantial rules of the Turkish merger control are taken from the corresponding EU provisions. The amendments to the Turkish Competition Law in 2020 introduced the SIEC test to improve the concentration control regime and harmonize it with the EU rules even further. The amended Merger Communique in 2022 revised the thresholds as a response to the national currency devaluation and rapid developments in technology/digital markets, intending to prevent killer acquisitions, as well as decreasing the Turkish Competition Authority’s (TCA) caseload. In this short article, we would like to provide you with the important aspects of merger control in Turkey, including the main changes that came into effect following the reform of the Turkish Competition Law in June 2020.

New markets are under the intense scrutiny of the Turkish Competition Authority (“TCA”) due to new competitive concerns arising from the disruption that has emerged with the technological changes in the markets. Recently, the TCA has shifted its focus to emerging markets while monitoring the traditional markets constantly. In this framework, in July, the TCA initiated a full-fledged investigation against Martı İleri Teknoloji A.Ş. (“Martı”), the leading e-scooter rental firm, which is offering micromobility/microtransit service. Approximately one and half months later, in September, the TCA announced that the investigation against Martı is terminated with commitments.

This blogpost will give an overview on the draft amendment (the “Draft Amendment”) to the Law No. 4054 on the Protection of Competition (the “Law No. 4054”). The key points of the Draft Amendment concern:

The Turkish Competition Board (the “Board”) published its reasoned decision dated 30.09.2021 and numbered 21-46/667-332 (the “Decision”) concerning the full-fledged investigation launched against Türk Telekomünikasyon A.Ş. (“TT”) upon the complaints of undertakings operating in the retail fixed broadband internet access services market (downstream market). In their complaints, internet service providers (“ISPs”) alleged that TT rejected the requests for the provision of service that is necessary for them to provide access to their subscribers on unreasonable or unjustified grounds (no available ports or insufficient technical infrastructure), TT directed the subscribers to its subsidiary TTNET A.Ş. (“TTNet”), its conducts resulted in the exclusion of ISPs from the market, thus, constituted discrimination in favor of TT. Therefore, it was claimed that TT abused its dominant position in the wholesale fixed broadband internet access services market (upstream market) through its subsidiary TTNet in the downstream market.

The Turkish Competition Authority (TCA) has rendered a number of decisions, particularly in recent years, on whether on-site inspections have been hindered or complicated. These include two recent decisions on D-Market Elektronik Hizmetler ve Ticaret A.Ş. ("Hepsiburada"), one of the largest e-marketplaces in Turkey.

The Turkish Competition Authority (“TCA”) has rendered several decisions in recent years concerning the exchange of competitively sensitive information . A significant number of these decisions have involved negative clearance/exemption applications made to the TCA by undertakings seeking to lawfully exchange information among themselves.

On 4 March 2022, the Turkish Competition Authority (the “TCA”) increased the notification thresholds set in its merger regulation, i.e., Communiqué No. 2010/4 on the Mergers and Acquisitions Calling for the Authorisation of the Competition Board (“Communiqué No. 2010/4”). In addition to the amendment of turnover thresholds, the TCA added an exception to these thresholds for transactions involving acquisitions of what it defines as “technology undertakings.”

On 26 October 2022, the Ankara Regional Administrative Court’s 8th Administrative Chamber revoked[1] an earlier decision[2] of the Ankara 3rd Administrative Court that had annulled the Turkish Competition Board’s (the “Board”) decision concerning the imposition of administrative monetary fines on five international banks for failure to provide the requested information/data.[3]

As per Article 9(4) of Law No. 4054 on Protection of Competition (“Competition Law”), the Turkish Competition Authority (“TCA”) is entitled to impose interim measures in order to maintain the environment before the violation, without exceeding the scope of the final decision, in case of a possibility of serious and irreparable damages. It is observed that the TCA imposed interim measures for certain cases where it deems necessary in recent years.

The Ankara 13th Administrative Court ("Court")[1] recently annulled with its decision (“Court Decision”) the Turkish Competition Authority's ("TCA") cartel determination[2] (“TCA Decision”) against Kronospan Orman Ürünleri San. ve Tic. A.Ş. (“Kronospan”) in a decision through which it had imposed on 11 undertakings active in the MDF and flakeboard markets an administrative monetary fine for violating Article 4 of Law No. 4054 on the Protection of Competition ("Competition Law").

The Turkish Competition Authority (“TCA”) has launched numerous investigations into whether undertakings maintain their dealers' resale prices. These investigations include one launched into one of the most well-known sports product brands, Adidas Spor Malzemeleri Satış ve Pazarlama Anonim Şirketi (“Adidas”).

The Turkish Competition Authority (“TCA”) has published its reasoned decision dated 24.02.2022 and numbered 22-10/152-62 (“Private Hospitals Decision” or “Decision”) in which it examined the allegations that private health institutions and an association of undertaking (i) jointly determined the operating room service fees charged to freelance physicians, (ii) restricted competition by preventing employee transfers and jointly determining the salary scales of employees, and (iii) exchanged competitively sensitive information. Within the scope of the Decision, the activities of the relevant undertakings operating in Turkey’s two provinces, Samsun and Bursa, were examined separately.

On 5.12.2022, The Turkish Competition Authority (“TCA”) published its decision imposing a monetary fine on Martı İleri Teknoloji A.Ş. (“Martı”), a leading electric scooter rental company in Türkiye, for providing false and misleading information[1]. The reasoned decision of the TCA indicated that the Authority had communicated with Martı via email after receiving the official answers to its initial request for information with the aim to clarify any confusions that Martı might have had regarding the requested items and decided to impose a fine only after the second round of answers, which were still false and misleading, according to the TCA.

ACTECON promotes Senior Associates Mr. Caner K. Cesit and Mr. Mustafa Ayna to Counsel, Mid-Level Associates Ms. Ozlem Basiboyuk Coskun and Mr. Alper Karafil to Senior Associate, and Ms. Cansen Erensoy to Mid-Level Associate position, effective as of January 2, 2023.

The Regulation on the Control of Waste Electrical and Electronic Equipment (“CWEEE Regulation”) was revoked on Monday through the adoption of the new Regulation on the Management of Waste Electrical and Electronic Equipment (“MWEEE Regulation”) published in the Official Gazette, numbered 32055. Prepared as part of the harmonization process with the European Union (“EU”) legislation[1], MWEEE Regulation will enter into force on 1 February 2023. The renewed regulation brings significant new rules to the sector including the establishment of the EEE Information System and the obligation to register for EEE manufacturers, the disappearance of the concept of “authorized institution”, extraterritoriality clauses regarding the definition of ‘producer’ etc. Accordingly, we aim to provide a brief account of the important changes brought by the MWEEE Regulation in this short article.

When we review the Turkish Ministry of Trade’s official website and considering the latest global developments regarding the international trade, we believe that 2023 is going to be a busy year. In this regard, it is of utmost interest to parties which have stakes in this area to closely monitor and anticipate which investigations may be initiated, so as to either apply for an expiry review or to prepare for them. This becomes especially significant when the amount of scrutiny and work these investigations require the interested parties to dedicate.

The Turkish Competition Authority (“TCA”) has published its Mergers and Acquisitions Overview Report for 2022 (“Report”) on January 6, 2023. For ease of reading, we will refer to M&As as mergers.

Despite the huge workload and new appointments in 2022, the trade remedies continue to be one of the key tools used by the Turkish Ministry of Trade (“Ministry”) in ensuring the fair international trade practices and shaping the free trade rules to restore the competitive balance. Recently, the Ministry concluded an expiry review investigation concerning the imports of “baby carriages, parts of baby carriages (chassis only)”[1] originating in China.[2] This case is noteworthy because the measures are applicable for almost two decades and the Ministry established no dumping margin but still determined that the expiry of the measures would be likely to result in a continuation or recurrence of dumping.

The Competition and Markets Authority (“CMA”) of the UK has fined Germany-based Bayerische Motoren Werke Aktiengesellschaft (“BMW AG”), the ultimate parent company of the BMW Group, for failure to comply fully with a written information request without reasonable excuse through its decision of 6 December 2022 (“CMA Decision”). The fine includes a fixed amount of GBP 30,000 plus a daily amount of GBP 15,000, which will continue to accumulate until BMW AG complies with the information request.

On 12 January 2023, the Turkish Competition Authority (“TCA”) announced the initiation of two full-fledged investigations concerning the practices of certain private schools. Those investigations reveal that the TCA has been closely monitoring the news on the private schools’ pricing policies which have had wide coverage on the press recently and been on the agenda of the Ministry of Education (“MEB”)[1]. This piece briefly explains the new investigations as well as the previous investigations of the TCA against the private schools. Investigation against the Private French Schools Upon the preliminary investigation conducted by the TCA, it has been concluded that the pricing practices of Saint-Joseph French High School, Saint Benoît French High School, Notre-Dame de Sion French High School, Saint-Michel French High School and Sainte Pulchérie French High School (“Private French High Schools”) should be further examined in terms of Article 4 of the Law No. 4054 on Protection of Competition (“Competition Law”) (a provision which is similar to Article 101 of the TFEU – i.e. prohibiting the anti-competitive agreements)[2]. The Private French High Schools’ pricing policies were under the scrutiny of the TCA in two occasions previously through a preliminary investigation[3] and an individual exemption application[4]. In 2013, a preliminary investigation was initiated against the Private French High Schools to determine whether these schools (i) determined the school fees through anticompetitive agreements, concerted practices, or decisions of undertakings and (ii) entered into a gentleman’s agreement to prevent students’ transfers among themselves. Regarding the allegation of price fixing, the Private French High Schools disclosed that they met regularly to discuss and agree on various matters such as the prices, pedagogic needs, educational schedules and cultural activities, and decided the school fees jointly. The TCA stressed that the lists for the annual school fees reported to the MEB also supported those statements. The TCA then moved on to assess whether the price fixing by these schools resulted in any anticompetitive object or effect. The TCA first emphasized that the competition in the private education was primarily focused on the quality of the education instead of the price parameter and the fees obtained by private schools were used in order to enhance their quality of education. Furthermore, the TCA also evaluated that the main underlying motivation was to ensure higher quality and service conditions for the students and to avoid from the price parameter becoming a distinguishing factor that would prevent the formation of a joint educational vision. Hence, the TCA concluded that despite its potential to create adverse effect from the competition perspective, the relevant price fixing was not to prevent the competition but to maintain the quality of services. Apart from those, the TCA highlighted that the supply and demand structure in the relevant market primarily based on the factors other than the price competition and there were lots of alternative private schools for consumers. Therefore, the TCA resolved that the determination of fees at a monopolistic rate through an agreement among the schools was not possible in practice as well. Eventually, the TCA decided that (i) the price fixing by the investigated private schools did not have the object or result of preventing the competition, (ii) such prevention was not possible as per the structure of the relevant market, (iii) such practices were aimed to prevail service quality parameter over price regarding the students’ choices.  That said, by noting that if the conduct of a common determination of prices becomes more widespread this may lead to the restriction of competition in the relevant market, the TCA decided to send an opinion letter to the parties with the warning to refrain from any activities that lead to or may lead to anticompetitive results. Regarding the allegation of a gentleman’s agreement, the TCA also reviewed the student acceptance criteria of these schools; based on both the documents obtained through inspections, interviews with school officials and relevant regulations. Accordingly, the TCA concluded that student acceptances and transfers were solely based on the relevant regulations and thus there was no gentleman’s agreement completed between these schools. In 2015, one of the Private French High Schools applied to the TCA for an individual exemption assessment regarding the price fixing practices. In its review, the TCA mainly referred to the 2013 Decision and explained that (i) cooperation agreements/practices towards price determination are considered as per se violation, which precludes them from block or individual exemption assessment, (ii) thus the negative results from such agreements cannot be compensated by efficiency gains and therefore, (iii) there was no need to conduct a detailed assessment on whether the notified scheme fulfils the criteria for an individual exemption. Additionally, the TCA emphasized that there was no need to launch a full-fledged investigation, but it decided to send a warning letter again. Investigation against the Private Schools in Ankara In a simultaneous investigation announcement, the TCA provided very brief information about the initiation of another investigation, this time against eight private schools in Ankara, the capital city.[5] According to the TCA’s statement, the investigation regarding the private schools in Ankara also focuses on the determination of whether there is a violation of Article 4 of the Competition Law, but no further details on the types of the investigated practices were disclosed. The practices of certain private schools and an association of private schools were again under the scrutiny of the TCA before in 2011. At the time, the TCA had initiated a preliminary investigation against those to determine whether these schools engaged in price fixing and jointly determination of the personnel policies through Private Schools Union Association and Ankara Private Schools Association (e.g., wage fixing and no-transfer agreements).[6] After summarising the findings collected during the preliminary investigation through media publications and on-the-spot inspections, the TCA provided an overview of the increase trends in private school fees in the last five years. In this respect, prior to its assessments on the merits, the TCA first noted that (i) the price increase rates were generally different from each other and (ii) the majority of these schools increased their prices above the average annual CPI changes, while some of the price increases were below this rate. During the preliminary investigations, the TCA obtained agenda notes which referred to meetings held between certain private schools concerning the joint determination of school fees, scholarships, payment due dates and salaries of employees for the year 2001-2002. While emphasising that such meetings could be considered as anticompetitive within the scope of Article 4 of the Competition Law, the TCA evaluated that it was not possible to take any action based on the documents obtained since the statute of limitations had lapsed. The TCA also found information and documents relating to fee discussions during meetings within Private Schools Union Association (“PSUA”) and Ankara Private Schools Association. Furthermore, certain officers were interviewed during the investigation and they stated that (i) matters relating to fees were discussed during association meetings, (ii) generally no written decisions were issued but matters were discussed verbally. Lastly, the TCA found that associations were ‘recommending’ price increases to its members, including for example, raising the prices to a certain level above the CPI. In that context, after a brief reference to the relevant statements from the documents obtained during the preliminary investigation period (e.g., certain e-mails and media reports), it was noted that the Association conveyed its fee related recommendations and common understanding reached during the meetings in a non-binding advisory decision. Accordingly, following a brief explanation of the concept of concerted practices in Turkish and EU law, the TCA concluded that although these advisory decisions are not binding, they are violations by object and therefore should be evaluated within the scope of Article 4 of the Competition Law. A third category of documents obtained by the TCA related to “Principles of Private Schools” (“PPS”) prepared by the PSUA, which governed acceptance of students as well as employment conditions for teachers. The TCA established that the rules incorporated in the PPS were anticompetitive as they contained restrictions on the (i) employment and transfer of teachers between competing private schools and (ii) fees and scholarships offered to students. In that context, the TCA concluded that the PPS aimed to weaken the bargaining power of consumers and limit their preferences by allowing private schools to act in concert, and made it difficult for teachers working at private schools to transfer to other schools. The TCA then moved on to assess whether an individual exemption could be granted to the rules included in the PPS, under the Article 5 of the Competition Law. In that regard, the TCA emphasised that the mere object of developing the dialogue and goodwill amongst competing undertakings without any benefits for consumers could not be protected under competition law. Conversely, the TCA stated, the rules under PPS did not result in any significant benefits for the consumers and caused damages to consumers as well as teachers working in these schools. Accordingly, the TCA concluded that the principles could not benefit from an individual exemption within the scope of Article 5 of the Competition Law as they limited competition among private schools. Ultimately, the TCA decided that there was no need to launch a full-fledged investigation and sent a warning letter to private schools, Ankara and Istanbul Provincial Directorates of National Education and the PSUA. Conclusion The initiation of the two full-fledged investigations concerning the practices of certain private schools represents a markedly different approach by the TCA, compared to its previous decisions. As explained above, the practices of private schools were under TCA’s scrutiny previously, particularly between the years 2011 to 2015. However, the mentioned preliminary investigations had not led the TCA to initiate a full-fledged investigation regarding the practices of private schools. Following the announcement of the full-fledged investigations, it remains to be seen whether the TCA is set to change its previous approach. [1] See the recent amendment to Regulation on Private Educational Institutions by MEB, published on the Official Gazette, dated 06 January 2023 and numbered 32065. The amended rules revise the maximum increase rate that private schools can apply to their respective fees. Accordingly, the MEB will determine a maximum increase rate, by taking the annual consumer price index (“CPI”) into account. The repealed rule had established that the increase rates shall be determined at maximum 5% over the PPI+CPI/2 of the previous year. (https://www.resmigazete.gov.tr/eskiler/2023/01/20230106-4.htm). [2] See the TCA’s announcement: https://www.rekabet.gov.tr/tr/Guncel/ozel-saint-joseph-fransiz-lisesi-ozel-sa-6856462c4192ed11a2110050568520f2 [3] Decision dated 19.12.2013 and numbered 13-71/960-407 (“2013 Decision”): https://www.rekabet.gov.tr/Karar?kararId=dfce5cfc-3318-435c-8fae-555ba3acc052 [4] Decision dated 07.07.2015 and numbered 15-28/328-103 (“2015 Decision”): https://www.rekabet.gov.tr/Karar?kararId=f86a1b00-512a-43cd-bbbb-b3a36bc6a606 [5] See the TCA’s announcement: https://www.rekabet.gov.tr/tr/Guncel/ankara-merkezli-olarak-faaliyet-gosteren-c985ce9f4192ed11a2110050568520f2 [6] Decision dated 03.03.2011 and numbered 11-12/226-76 (“2011 Decision”): https://www.rekabet.gov.tr/Karar?kararId=7557b1b6-700b-4ffc-858b-bc832991cadd

On 17 January 2023, the Turkish Competition Authority (“TCA”) announced its reasoned decision rendered as a result of the preliminary investigation that was conducted against DSM Grup Danışmanlık İletişim ve Satış Ticaret AŞ (“Trendyol”).[1] The preliminary investigation was initiated pursuant to a confidential complaint which alleged that Trendyol violated Articles 4 and 6 of Law No. 4054 on Protection of Competition (“Competition Law”) in the market for online food and supermarket order. This piece briefly explains the (i) dominance and abuse of dominance, (ii) block exemption and (iii) full-fledged investigation related assessments of the TCA in its reasoned decision.