New Development
The Turkish Competition Authority (“Authority“) published its 2020 Annual Report (“Report“) on its official website on March 26, 2021. The Report provides an overview of the Authority’s activities in 2020. The Report’s foreword states that due to the uncertainties and economic slowdowns caused by the Covid-19 pandemic, the Authority increased its efforts to maintain confidence in the markets and the competition-dynamism-welfare. As a result, the Authority preliminarily focused on markets such as organized retail, e-commerce, food, house cleaning products, medical and protective masks and hand sanitizers. In any event, the Authority reported that despite the pandemic’s negative effects, it nonetheless met all of its performance goals stipulated in the 2019-2023 Strategic Plan.
Amendments, Legislative Changes and Future Plans
2020 was the year of change, and its effects can still be observed in the third month of 2021. As the Report points out, in terms of the implementation of effective competition policy in 2020, the Law No. 7246 Amending the Law No. 4054 on the Protection of Competition (“Amendment“) entered into force on June 24, 2020 in an effort to adopt Turkish competition law to economic and technologic developments and to harmonize it with the European Union enforcements. The Amendment mainly introduced the Significant Impediment to Effective Competition (SIEC) Test for mergers and acquisitions (“M&A“); de minimis exception for conducts that do not considerably restrict competition; and commitment and settlement mechanisms. The Authority also published the “Guidelines on Digital Data Review during Dawn Raids” and launched sector inquiries on online marketplaces, fast moving consumer goods retails, fresh fruits and vegetables, fuel oil, and financial technologies, all of which are targeted to be completed by the end of 2021. Finally, as digitalization was one of the most important topics for the Authority, the Report states that the Authority will continue its related studies and inquiries to develop a more efficient and adaptive competition law policy and continue closely monitoring these markets.
Letting the Numbers Talk
Compared to 2019, there is a minimal (2%) increase in the number of Competition Board (“Board“) decisions. The Board issued decisions for 312 cases in 2019 and 319 cases in 2020. Approximately 69% of these cases in 2020 were related to M&A, 20% concerned competition law violations, and the remaining 11% were about individual exemptions and negative clearances.
- Competition Law Violations: The Board concluded 65 cases regarding competition law violations in 2020, of which 29 were issued after full-fledged investigations and the remainder were issued after preliminary investigations. There is a slight decrease in the number of cases compared to 2019, where the Board issued decisions for 69 cases, 15 of which were given after full-fledged investigations. Additionally, of these 65 cases, 36 were related to anti-competitive agreements (31 of them were between competitors, 10 were between undertakings at different levels of the supply chain, two were hybrid); 22 were related to abuse of dominance and seven were hybrid. Besides, 10 of 29 investigations were closed by rejecting the allegations; 16 resulted in administrative monetary fines; and three were concluded with commitments, which were the first reflections of the implementation of the commitment mechanism after the Amendment. The investigations mostly concerned five sectors: (i) chemistry and mining; (ii) machinery industry; (iii) health services; (iv) logistics, storage and post; and (v) information technologies and platform services. The Report also reveals that there were 44 ongoing investigations at the end of 2020.
- Mergers and Acquisitions: In 2020, the Board reviewed 220 transactions in total, a slight increase compared to 208 transactions in 2019. Of these 220 transactions, 150 were acquisitions, 62 were joint ventures and eight were mergers. The top six industries in terms of M&A transactions were reported as chemistry and mining; automotive and vehicles; machinery industry; bank, capital markets, finance and insurance services; infrastructure services; and IT and platform services industries. The Board unconditionally cleared 190 of these transactions, while conditionally approving one transaction and rejecting another one. Twenty of the total transactions were found to be out-of-scope or not subject to the approval of the Board. Finally, the Board took six transactions into Phase II review, three of which were concluded in 2020, and the remaining three are still undergoing Phase II review.
- Exemptions and Negative Clearances: The Board finalized 31 cases regarding individual exemptions and three cases concerning negative clearances in 2020, across two primary industries, bank, capital markets, finance and insurance services and health services. The Board granted 15 individual exemptions; seven exemptions on conditions; and seven no-go decisions. Compared to 2019, where there were no conditional exemption decisions and only one individual exemption application was rejected, the number of conditional exemptions in 2020 have seen a noteworthy increase.
Administrative Monetary Fines
The Report provides a full comparative yearly summary of the administrative monetary fines imposed on the undertakings.
- In 2020, the Board imposed a total of TRY 1.96 billion in administrative monetary fines on undertakings due to competition law violations, demonstrating a significant increase from TRY 238 million in 2019.
- Fines for anti-competitive agreements, concerted practices and decisions of association of undertakings amounted to TRY 1.657 billion, whereas fines for abuse of dominance amounted to TRY 307 million.
- The Board increased attention on digital markets affected the administrative fines imposed on undertakings, bringing the amount of administrative fines imposed on information and communications technology related undertakings to TRY 295 million. However, the chemistry and mining industries came in first in terms of fine amounts, where the Board imposed a record fine on four oil companies for TRY 1.524 billion in 2020.
- Fines for false or misleading information (i) in applications amounted to TRY 838,656; and (ii) in terms of requests for information and on-site inspections amounted to TRY 61.5 million.
- Fines for preventing or complicating on-site inspections amounted to TRY 2.6 million.
- Fines for gun-jumping amounted to TRY 21 million.
- Proportional administrative fines amounted to TRY 151.4 million.
Conclusion
The Report listed the Authority’s priorities for the upcoming period as (i) developing the secondary legislations in line with the amendments to the Law No. 4054 on Protection of Competition; (ii) improvement of evidence-gathering mechanisms; (iii) close surveillance of digital markets; (iv) increasing the competition awareness and culture; (v) development of international relations in terms of competition policy; and (vi) increasing corporate capacity and performance. The Authority’s communiqués on de minimis and commitment mechanisms already entered into force on March 16, 2021 and the draft regulation on settlement was published on March 18, 2021, evidencing the Authority’s realization of its first goal. If 2020 was the year of change, it appears 2021 will be the year of observation and experience.
