OTV Decision⁸

Back in 2009, the Board dismissed complaints in respect of 12 automobile companies regarding an alleged collusion between new automobile producers and distributors to increase prices and to restrict the supply of automobiles on the grounds that there was not sufficient evidence to initiate an investigation. However, the Board’s dismissal decision was reversed by the Plenary Session of the Administrative Law Chamber of the Council of State (IDDK) and so the Board launched an investigation on 26 March 2020 for activities performed during 2009 against those 12 automobile companies. The Board examined the case both on the end of the statute of limitations and the ne bis in idem principle (avoiding double prosecutions/punishments against the same facts with same persons) in accordance with the defences of the relevant undertakings. In the decision, the Board decided that no fines should be applied in respect of any of the parties on the ground that the conditions for ne bis in idem principle was met with respect to 11 companies subject to the investigation, and that the collected evidence did not indicate or prove a breach of the Law in respect of the remaining company.

Banks Decision⁹

The Board launched a preliminary investigation on 17 January 2020 to consider the alleged anti-competitive activities of 27 financial entities (including banks and portfolio management companies) in relation to deposits, loans, foreign exchange, government bonds, commercial bonds, and intermediation services. The Board did not find sufficient evidence to continue the investigation into the relevant allegations, whereas the preliminary investigation took two years and involved an extensive request for information from all the parties subject to the investigation. This decision marks the increasing attention of the Board on the banking market at times of significant currency fluctuations (relevant product markets being defined as corporate banking services market, derivatives market, fund (management) market, bond/securities market and foreign exchange market).

Vestel Decision¹⁰

The Board launched a preliminary investigation into complaints about an infringement of competition law against certain home appliance companies, backed up by claims that such home appliance companies and their distributors restricted internet sales and fixed resale prices. Following its evaluations, the Board decided that no investigation is required in respect of Vestel Elektronik Sanayi ve Ticaret A.Ş (« Vestel« ), but that the remaining companies would be investigated. That said, in its objection annotation, one of the Board members dissented against the dismissal decision because he considered that actions such as restricting internet sales and fixing resale prices are common anti-competitive activities observed in the market, and factoring in the fact that in the oligopolistic structures such as in the house appliances market where the firms’ decisions are influenced by the decisions of other firms, an economic analysis should have covered all companies, including Vestel.

Türk Telekom Decision¹¹

Türk Telekomünikasyon A.Ş. (« Türk Telekom« ) was subject to an investigation where competing undertakings claimed that Türk Telekom was in a dominant position on the wholesale fixed broadband internet services market and was unjustly preventing its competitors on the retail fixed broadband services market from gaining customers and providing services. Although the Board found that Türk Telekom was in a dominant position on the wholesale fixed broadband internet services market, the actions of Türk Telekom did not constitute a breach of the Law by being an abuse of its dominant position on this market. That said, one of the Board members dissented to the decision and stated that Türk Telekom actually complicated the operations of its competitors and caused the closure of the relevant market.

Other decisions

Kınık Decision¹²

On 3 March 2022, the Board issued a decision regarding the actions that resulted in a hindrance/obstruction of the inspection at an on-site inspection carried out Kınık Maden Suları AŞ (Kınık), as part of the investigation initiated against suppliers on the natural mineral water market. The Board concluded unanimously that the deletion of both Whatsapp data and email correspondences during the on-site inspection was considered an obstruction of access to potential evidence and findings and a hindrance of the on-site inspection, therefore imposed an administrative fine on Kınık by referring to the previous decisional practice of the Board (Eti Decision, Pasifik Decision, Medicana Samsun Decision, İstanbul Gübre Decision, etc.) as well as the administrative court decisions on this subject.

A101 Decision¹³

On 23 June 2022, the Board issued a decision regarding the hindrance/obstruction of an on-site inspection by Yeni Mağazacılık A.Ş. (A101) as part of an investigation initiated against retailers in the FMCG market. The Board concluded with a majority vote that there was no concrete evidence that the deletion of Whatsapp data occurred after the inspection commenced, therefore the Board did not impose an administrative fine against the undertaking. However, a dissenting opinion was issued with the aim of expanding the scope of the examination of digital data before the on-site inspection by referring to the previous decisional practice of the Board (Medicana Samsun Decision¹⁴, İstanbul Gübre Decision¹⁵,etc.) on the grounds that: 

• the absence/non-availability of the log record cannot be claimed as evidence that the digital data was not wiped. 
• the deletion of data by any means whatsoever should be considered as concrete evidence of the hindrance/obstruction of the on-site inspection.

With this decision, the Board stated explicitly that reasonable doubt of any kind of digital data deletion before an on-site inspection cannot be considered as concrete evidence. The decision is important since it differs from Board’s previous decisions regarding hindering/obstructing on-site inspections, as it sets a high standard of proof in favour of undertakings. It must be underlined that the Board’s decision resembles a recent judgment by the Ankara 2nd Administrative Court in terms of the emphasis on the Board’s obligation to rely on concrete evidence.

Exemptions

Dogus Otomotiv Decision

On  21 July 2021, the Board concluded on the negative clearance/exemption request of Dogus Otomotiv for its consultancy agreement concluded with ADP Oto Sanayi ve Ticaret Ltd. Şti. for the purpose of market research regarding spare parts and repair and maintenance services. The Board evaluated that the facts that (i) the requested data consist of publicly available and current prices information and (ii) the supplier of data is a market research company, the information exchange cannot be considered as sensitive in terms of competition law. In this regard, the Board granted a negative clearance since no competition concerns will arise as a result of this agreement on relevant markets.