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September 2, 2024

COMPETITION LAW NEWSLETTER

This newsletter updates readers on the recent developments occurred in August 2024 in the competition market. It includes (i) the launch of the European Commission’s (“Commission”) public consultation on draft antitrust Guidelines concerning exclusionary abuses, (ii) annual report providing an overview of Turkish Competition Authority’s activities in 2023 published on August 13, 2024, (“Annual Report”) and (iii) other recent news.

1. The Commission’s Public Consultation Launch

The Commission has launched a public consultation inviting all interested parties to comment on on draft Guidelines addressing exclusionary abuses of dominance under Article 102 of the Treaty on the Functioning of the European Union (“TFEU”). Herein draft Guidelines prohibit abusive practices by dominant undertakings that harm competition, such as predatory pricing, margin squeeze, exclusive dealing and refusal to supply. This initiative aims to clarify the application of Article 102, as it is the only area of EU competition law without specific guidelines. Mainly, the draft Guidelines seek to:

• Clarify competition law enforcement and consumer welfare concepts.
• Provide principles for assessing single and collective dominance.
• Outline the evidence needed to prove exclusionary effects of dominant undertakings’ conduct.
• Distinguish between conduct requiring specific legal tests and that which does not.
• Set general principles for assessing objective justifications provided by dominant undertakings.

Comments on the draft are invited until October 31, 2024, with final guidelines expected in 2025. This update will replace the 2008 Guidance on enforcement priorities and reflects recent case law and feedback from a 2023 Call for Evidence.

2. 2023 Annual Report of Turkish Competition Authority

The Annual Report contains detailed information on various topics including decisions, statistics, and international relations. The Annual Report also analyzes the strengths of the Turkish Competition Authority (“Authority”) and identifies areas for improvement as well as strategic recommendations and proposed measures for future action. Briefly the topics are below:

2.1 Competition Violations and Investigations

There is a significant increase in the number of competition infringement cases concluded by the Turkish Competition Board (“Board”) in 2023 compared to the previous year. Accordingly, 145 decisions taken by the Board regarding competition law infringements in 2023, 117 decisions were taken at the end of the investigation process. The remainder were issued following preliminary inquiries.

Pursuant to the Annual Report (out of 145 cases), (i) 121 were related to anticompetitive agreements (of these, 55 of them were between competitors, 69 were between undertakings at different levels of the supply chain [vertical], and 3 were of mixed nature), (ii) 18 were related to abuse of dominant position and (iii) 6 were of a hybrid nature.

As a result of the investigations and violations the Board imposed administrative fines on a number of undertakings. The findings regarding the imposition of administrative fines are as follows:

• The sector with the highest total amount of fines was the food sector with USD 23,3 million,
• The second ranked sector was the machinery industry with USD 21 million,
• The healthcare services sector was the third-ranked sector with USD 14,6 million,
• The total amount of administrative fines imposed for restrictive agreements, concerted practices, and decisions was approximately USD 52,8 million,
• The total amount of administrative fines imposed for abuse of dominant position was USD 3 million,
• The total amount of administrative fines imposed for providing incorrect or misleading information within the scope of information requests and/or on-site inspections was USD 99,7 thousand,
• The total amount of administrative fines imposed for obstructing or complicating on-site inspections was USD 7,3 million,
• In total, the Board imposed USD 14.2 million in administrative fines on undertakings.

2.2 Merger and Acquisition Transactions

The Board examined 217 transactions in total, including 139 acquisitions, 73 joint ventures, 3 privatizations and 2 mergers. The top 3 sectors with the highest number of M&A transactions were IT and platform services, chemicals and mining, and healthcare services.

2.3 Legislative Activities

Pursuant to the Annual Report, the Authority has taken the following actions: (i) amended the Regulation on Active Cooperation for Detecting Cartels and (ii) initiated a study on Draft Directive on the Procedures and Principles Regarding On-Site Inspections.

2.4 International Collaborations

The Authority engaged in active collaboration with competition authorities in other countries and international platforms, including the Organization for Economic Co-operation and Development (OECD), the International Competition Network (ICN) and the United Nations Conference on Trade and Development (UNCTAD). These collaborations contributed to the development of competition law standards and enhancing Türkiye’s regulatory effectiveness.

3. Other Recent News

• The Board launched an investigation against several undertakings which are operating in the sector for manufacturing and marketing tractors, concerning the claim that they violated Article 4 of the Act No 4054 on the Protection of Competition (“Act”) by means of resale price maintenance, region and customer restriction, exchanging anticompetitive information and entering into anticompetitive agreements. The Board decided that Hattat Traktör Sanayi ve Ticaret Anonim Şirketi has indeed violated Article 4 of the Act by setting the resale prices at final sales points and imposed on this undertaking an administrative fine of USD 606,328.75.

• The Board has concluded the investigation concerning the allegation that some ready-mix concrete producers operating in the Adana and Osmaniye provinces violated Article 4 of the Act.

Two undertakings have settled, and accordingly fined by the Board. The Board decided that Samet Hazır Beton İnşaat Madencilik Lojistik Enerji Limited Şirketi has violated Article 4 of the Act by participating in an agreement/concerted practice between competitors aimed at price maintenance and region/customer allocation and imposed an administrative fine of USD 192,802.01.

• The Board has concluded the investigation on some ready-mix concrete producers operating in the Ankara and Kırıkkale provinces to determine whether they violated Article 4 of the Act by entering into concerted practices to fix ready-mix concrete sale prices and/or allocate regions/customers and by exchanging information or not.

During the investigation process, settlements were reached with 5 ready-mix concrete producers through Board decisions taken on various dates, with the settlement decisions concerned imposing a total of USD 1,909,842.20 in administrative fines.

For the rest of the undertakings involved, the Board has decided that (i) there were no findings to indicate that five of the undertakings investigated violated Article 4 of the Act (ii) five of the undertakings violated Article 4 of the Act by engaging in region/customer allocation, resale price maintenance and exchange of competitively-sensitive information (iii) one undertaking violated Article 4 of the Act by exchanging competitively sensitive information and (iv) one undertaking violated Article 4 of the Act by engaging in region/customer allocation, resale price maintenance and exchange of competitively sensitive information. Accordingly, the Board imposed a total of USD 3,537,904.00 in administrative fines.

Should you have any inquiries, please do not hesitate to contact us.

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