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 TCA launched a preliminary investigation against Krea İçerik Hizmetleri ve Prodüksiyon A.Ş. (“Krea”, which is known as “Digiturk”) in order to evaluate the allegation that Krea provides broadcasting organizations with sub-broadcasting rights, particularly “highlights for news purposes” and “extended highlights”, within the scope of the broadcasting rights of Turkish Super League and First League football matches, which are exclusively owned by Krea, in a discriminatory manner.[1] Within the scope of the preliminary investigation, the TCA decided to render interim measures decision against Krea,[2] and the reasoned decision was published on 17.10.2022.

The TCA initially evaluated that the transfer of the broadcasting rights of the Turkish Super League and the First League exclusively to a single broadcaster, Krea, as a result of the tender held by the Turkish Football Federation (“TFF”), creates a monopoly power covering the agreement period in the relevant market and therefore, Krea is in a dominant position. The term of the agreement between TFF and Krea on the transfer of broadcasting rights was determined as five years and subsequently, extended for two years covering the seasons of 2022-2023 and 2023-2024.

It is noted in the decision that the main income of free television broadcasting organizations is advertising in parallel with their ratings. In this context, the broadcaster(s) with access to the extended highlights package provided by Krea is able to attract the viewers and increase their ratings by broadcasting the highlights of the relevant football ­­matches before the broadcasting organizations that have not purchased this package or even have no knowledge of such package. Accordingly, due to the possibility of decreasing ratings and thus the advertising incomes, Krea’s behaviour is considered to raise anticompetitive impact for each football match during the ongoing 2022-2023 football season. This evaluation is supported by the TCA’s precedent[3] which includes the following statement: “Providing highlights for news purposes or summary highlights to Show TV or any broadcasting organization earlier than others should be considered as discrimination in terms of the Competition Law.”

The reasoned decision also contains the details of the interim measures in the TCA’s Star[4] and Teleon[5] decisions, where the TCA imposed interim measures on the investigated undertakings forcing them to deliver the relevant footage of Turkey First Football League to broadcasting organizations at the same time. In line with this approach, the TCA concluded that Krea’s behaviour may lead to serious and irreparable damages until the TCA’s final decision by taking into consideration of the following estimations:

• Competition in the market for "broadcasting rights of TFF Super League and TFF First League matches" may be adversely affected.
• The commercial activities of other broadcasters other than the Turkish Radio and Television Corporation (“TRT”), which is the first broadcaster of the extended and news-related highlights of the Turkish Super League and First League football matches provided by Krea to sub-broadcasters, may become difficult.
• The viewing rates and rating results of broadcasters may be adversely affected regardless of competitive parameters.

In light of the foregoing, the interim measures imposed by the TCA require Krea not to allow extended highlights and highlights for news purposes to be broadcasted before any time determined in the relevant specification for highlights for news purposes by any broadcaster, who bought or is willing to buy the broadcasting rights, every week and in terms of each match of which the footages are delivered to the audience for the ongoing 2022-2023 football season.

This decision constitutes the most recent part of the TCA’s practices of implementing interim measures, which have been increasing in recent years. In fact, considering the duration of investigation period stipulated under the Competition Law, it is considered that such interim measures would be indeed necessary for the case at hand in order to maintain the market conditions before Krea’s alleged practice in terms of the ongoing 2022-2023 football season.

In this context, it is believed that the TCA maintains its consistent approach in the relevant market where it implements interim measures for the alleged unlawful transfer of sub-broadcasting rights.

Article by Caner K. Çeşit, Cansen Erensoy and İrem Özdamar

[1] The TCA’s decision dated 08.09.2022 and numbered 22-41/603-M.

[2] The TCA’s decision dated 29.09.2022 and numbered 22-44/652-281 announced on its website on 30.09.2022.

[3] The TCA’s TFF/Digiturk/Atlas decision dated 07.09.2006 and numbered 06-61/822-237.

[4] The TCA’s Star decision dated 28.08.2022 and numbered 02-50/636-258.

[5] The TCA’s Teleon decision dated 21.09.1999 and numbered 99/43/450-283(a).