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12 January 2023
This Competition Law Newsletter provides information on the latest developments in relation to the Turkish competition market and the implementation of Law No 4054 on the Protection of Competition (the "Law") in light of recent announcements and publications by the Competition Authority (the "Authority") and decisions of the Competition Board (the "Board").
Investigation Announcements:
The Board has continued its series of investigations into various sectors as follows: ,
M&A Notifications:
In December 2022, a total number of 13 merger and acquisition notifications were made to the Board, the sectoral distribution of these is as follows:
The Board rendered two decisions in December 2022:
Martı Decisions [3]
On 5 December 2022, the Board issued a decision imposing an administrative fine on Marti İleri Teknoloji A.Ş. ("Martı"), a micro-mobility services provider, on the grounds that it had submitted false and misleading information within the scope of the preliminary investigation launched against it.
After a complaint was filed against Martı to the Board on 11 September 2022, alleging that Martı had a dominant position in the relevant market and was misusing its dominant position through its exclusionary behaviour, the Board determined that no further action was required. However, a lawsuit was Court with a motion to annul the Board's decision. The court annulled the Board's decision for non-compliance with the procedure stipulated under the Law, stating that the Board should have conducted a preliminary investigation before deciding not to take any action. Following the court's decision, the Board opted to launch a preliminary investigation against Martı.
As part of the preliminary investigation, the Board asked Martı to submit information on the starting and per-minute fees of e-scooters, as well as the campaigns used in İstanbul, Ankara, and İzmir. In response, Martı submitted its base prices, stating that prices had varied between 2019 and 2022. However, after comparing user data including campaign messages sent from the application within the relevant periods and the information submitted by Martı, the Board concluded that Martı had provided incomplete, inaccurate and misleading information to the Board. Therefore, it decided to impose an administrative fine in the amount of one-thousandth of the company’s 2021 turnover, as per subparagraph (c) of the first paragraph of Article 16 of the Law.
In a second decision, the Board ruled on a claim regarding an alleged unnotified merger between Martı and Mobilite A.Ş ("Mobilite"), the Turkish affiliates of US-based Martı Technologies Inc. because such a merger would result in the exclusion of competitors in the e-scooter sector.
In its decision, the Board focussed on the fact that both of the undertakings are ultimately controlled by Martı Technologies Inc., and that Mobilite was operated in Istanbul to test consumer approaches or preferences for different brands of scooters, ending its activities for consumers after just a few months. In light of these facts, the Board concluded that both the undertakings belong to the same group of companies and these undertakings are not required to seek the Board’s approval for the planned transaction, as there is no identified merger. Therefore, the Board did not impose a fine.
The European Commission (the "Commission") has concluded its investigations against Amazon by accepting commitments offered by Amazon and making them legally binding under EU antitrust rules. The Commission evaluated the commitments as meeting expectations and alleviating the Commission's competition concerns in terms of Amazon's use of non-public data of its marketplace sellers to distort fair competition on its platform and abuse its dominant position on the French, German and Spanish markets.
In July 2019, the Commission launched a formal investigation into Amazon's use of non-public data of its marketplace sellers. In November 2020, the Commission launched a second investigation and preliminarily concluded that Amazon had abused its dominant position on the French, German and Spanish markets for the provision of online marketplace services to third-party sellers. In response, Amazon proposed the first set of commitments to the Commission, which the Commission found to be insufficient to address the concerns. In a second attempt, Amazon reviewed and updated its commitment package. The commitments ensure that Amazon Retail will not use non-public marketplace seller data, that there is an unbiased selection of the winner of the Buy Box and that Prime sellers can freely choose and negotiate directly with carriers. Amazon will also introduce a second competing Buy Box offer on its product display pages, which will enhance consumer choice and increase the exposure of sellers active on the marketplace.
The final commitments will remain in force for seven years concerning Prime and the display of the second competing Buy Box offer, and for five years for the remaining commitments. The Commission will monitor the implementation of these commitments through an independent trustee. It should also be noted that if Amazon fails to comply with its commitments, the Commission can impose a fine of up to 10% of its total annual turnover, without having to find an infringement of EU antitrust rules, or a periodic penalty payment of 5% per day of Amazon's daily turnover for every day of non-compliance.
Four days after its first Digital Markets Act (the "DMA") workshop on 5 December 2022, the Commission launched a public consultation on the proposed regulation on the implementation of the procedural aspects of DMA enforcement, such as the form, format and details required for notifications under the DMA. The consultation, which allowed reviewing and commenting on the proposed procedure, was open until 9 January 2023. According to the Commission's projected timeline regarding the DMA's implementation, the implementing regulation will enter into force in 2 May 2023.
On 15 December 2022, Advocate General of European Court of Justice, Mr Rantos, delivered his non-binding opinion on the case concerning UEFA and FIFA's alleged abuse of a dominant position and a v iolation of rules on anticompetitive agreements, following the 2021 announcement by several major European football teams of their intention to form a separate and independent European Super League. In his non-binding opinion, Mr Rantos underlined that EU competition law does not prohibit FIFA's and UEFA's rules requiring their prior approval for any new competition, and their threat of sanctions against clubs that participate in a project to create a new competition. In other words, he accepted the objectives pursued by UEFA as legitimate and the means to achieve them as proportionate. He stated that UEFA, as the sole organiser of all major interclub football competitions at the European level, has to "ensure that third parties are not unduly denied access to the market to the point that competition on that market is thereby distorted."
