Although the negative economic and social impacts of the COVID-19 pandemic persists, we can claim that the 2021 makes a great entrance in terms of the Turkish Competition Law, and it seems like this pattern will prevail in the subsequent quarters. In terms of mergers and acquisitions, 45 acquisitions and 3 joint ventures have been permitted, busy/intense investigations led to administrative fine penalties and likewise the country makes a swift entrance to the second quarter due to a new “Google Judgment”

When the statistics regarding the first quarter of the 2021 is examined, it can be seen that the Turkish Competition Authority has issued 11 investigations and the total amount of the administrative fine penalties has reached beyond 800,000,000 TL. While the total annual administrative fine penalties until 2020 were between 200,000,000 and 300,000,000 TL, this amount has risen to approximately 2,000,000,000 TL. Considering the amount of the administrative fine penalties of the first quarter of the year and the first month of the second quarter, 2021 is expected to prevail greater sums of fine penalties compared to the previous year.

Within the same period, two new secondary legislation were entered into force and an annunciation draft were exposed due to the changes in the Code 4054. It can be claimed that the first quarter was intensive in nature in terms of the current reports. The Turkish Competition Authority has provided the four different reports to the shareholders. Ultimately, an industrial investigation regarding the online advertising industry was initiated.

The Turkish Competition AuthorityIndustry who were not indifferent to the global and digital developments, has contributed to the debate regarding the Whatsapp conditions of use and privacy policy by initiating an investigation. Moreover, the Turkish Competition Authority has issued an injunction due to the Art. 9 of the Code, in case of possible damages regarding the final judgment and the emergence of the irretrievable damages.

The first investigation that was finalized with the administrative fine penalty in 2021 was about the wheat flour industry enterprises. In that particular investigation, it was issued that 34 different enterprises were engaged in an information exchange and therefore violated the Art. 4 of Code 4054, which led to an administrative fine penalty of 25,000,000 TL.

The finalized case regarding the Türkiye Sigorta, Reassurance and Retirement Corporation and OSEM Certification A.Ş. occupies a significant spot in terms of affidavits. In that particular investigation, the affidavit packages provided by the enterprises had the capacity to eliminate the competitive issues and therefore were accepted by the court and earned a “binding” status. Since this verdict is the first example where structural and behavioral affidavits are accepted by the court jointly, it occupies a prominent place. In the subsequent terms, we expect that more affidavit and accordance cases will be accumulated.

Throughout this term, 480,217,217 TL was the greatest amount of administrative fine that was issued to a single enterprise, and it was issued to Unilever San. ve Tic. Türk A.Ş., who occupies a leading part in the both business-to-business and customer-oriented ice-cream industry. The Turkish Competition Authority issued the fine in question, due to the violation of the Art. 4 and 6 of the Code.

Moreover, the Turkish Competition Authority, stipulated/foresaw/predicted particular limitations regarding the lease, as can be recalled from the Coca-Cola Verdict of 2007. Distinct from the Coca-Cola Verdict of 2007, the Unilever Verdict of 2021 issued that the 30% rather than 20% of the market shelves will be devoted to competitive products. We are looking forward to the release of justified judgment in order to compare these differences and interpret the particular violation in terms of the Art. 4. When the investigations regarding the Izmir-based container transportation market in land, the number of the corporations that receive administrative fine penalties stands out. In that particular verdict, 72 different enterprises received administrative fine penalties at different rates and amounts. Moreover, the Arslan Nakliyat San ve. Tic. A.Ş. has provided an affidavit prior to the verdict, yet the given affidavit has been rejected due to the late submission to the court.

Another investigation issued an administrative fine penalty of 271,000,000 TL to 11 enterprises that specialized in medium-density fibreboard and chip plate markets. Considering that this particular industry has received similar fine penalties, it is beneficial to emphasize aggravating factors and deterrence in penalties.

Another investigation that resulted in an administrative fine penalty is about the pharmaceutical industry. Novartis Turkey and Roche Turkey have received a total amount of 278,400,000 TL fine as a consequence of the investigation which examined whether these firms violated the Art. 4 of the Code 4054 and engaged in any activity to popularize the use of Lucentis, which is more expensive than Altuzan and Lucentis medications that were utilized in ocular diseases.

Companies that are in possession of a leading market share in their industries such as Türk Telekom/TTNet, Biletix and Mey İçki did not receive administrative fine penalties in competition-related investigations. Similar to the previous investigations, the cases against Biletix has not provided any violation against the Code 4054, yet it is emphasized that the company is obligated to abstain from drawing up contracts that involve exclusivity- or de facto exclusivity-related provisions and acting in that particular manner. In the Mey İçki Investigation, it is provided that there is a violation of Art. 6, yet due to the existence of a previous fine penalty regarding that particular violation, the company did not receive any additive administrative fine penalties.

Recognizably, the Code 7246 and the Code 4054 has received some amendments in 24.06.2020 dated Official Gazette of the Republic of Turkey and concepts such as affidavit, reconciliation and de minimis were included in the Competition Legislation, along with the initiation of the organization of a secondary legislation that includes procedure and principles regarding these concepts. In this context, the No. 2021/2 Annunciation (i.e., Committal Annunciation) and the No. 2021/3 Annunciation (i.e., De Minimis Annunciation) entered into force in the 16.03.2021 dated and 31435 numerated Official Gazette of the Republic of Turkey. Besides, a draft regarding the “Rekabeti Sınırlayıcı Anlaşma, Uyumlu Eylem ve Kararlar ile Hakim Durumun Kötüye Kullanılmasına Yönelik Soruşturmalarda Uygulanabilecek Uzlaşma Usulüne İlişkin Yönetmelik” were developed and provided for public opinion. With these new arrangements and regulations entering into force and implemented effectively, it is expected that the public sources will be utilized in a more productive manner

In January 2021, the Turkish Competition Authority decreed that an industrial-level investigation that specializes on the online advertising industry should be initiated with the aim of identifying the behavioral and/or structural competition issues and providing solution offers regarding these particular issues by following closely the national and international current developments.

In March 2021, the Effect Analysis Report of 2021 and Acquisition and Merge Outlook Report of 2020 were released. The Report that details the actions of the Turkish Competition Authority in 2020, will be provided to all shareholders on March 26, 2021.

Fast Moving Consumer Goods Industrial Analysis Pre-Report is also released in that period. The comprehensively scripted report provides under its “Conclusion” title that the industrial concentration rates are increasing swiftly, and local and mini-markets are decreasing in share.

In Conclusion, the impact of the competition law, and therefore the impact of the Turkish Competition Authority verdicts are affecting various industries including IT technologies, platform service industries, e-commerce and many others. Therefore, even though the market share of a particular enterprise is low, it should consider the concept of “competition compliance” among its priorities and without delay should build its competition compliance programme and implement it in an effective manner. Otherwise, it may experience high amounts of administrative fine penalties.

In order to get informed about our competition compliance programme and competitional law services or ask questions, provide an opinion or advice on that particular matter you can contact us.