Turkish Competition Law Newsletter - 2023 Spring Issue

It has been an active three months in Turkey from a competition law perspective. In this Spring Issue, we begin our remarks with the intense work schedule of the Turkish Competition Authority (the “Authority” or the “TCA”), particularly in terms of its sector-based studies and the increasing probes into multiple companies. Indeed, the TCA has been very focused on initiating and/or concluding inquiries in many sectors, including FMCG, online advertising, mobile ecosystems and earthquake recovery markets. Additionally, the TCA recently published its market study on the impact of the digital transformation on competition law, in which it comprehensively evaluated digital trends, on-going investigations against several tech companies, decisions involving digital markets and platforms as well as the current challenges that regulators face due to digitalization.

Our recent edition also refers to the latest gun-jumping case in Turkey, in which Elon Musk was fined by the Turkish Competition Board (the “Board” or the “TCB”) in March 2023 because he failed to notify of the Twitter deal. The transaction essentially required clearance in Turkey and is probably the first case where the acquirer was fined for gun-jumping under to the recently introduced “technology undertaking” concept. Along these lines, it is fair to say that the number of cases that fall within the technology undertaking exception significantly increases. Indeed, the Board published seven (7) new cases in April 2023^[1] in which it found that all the target companies fell within the technology undertaking definition due to their activities in multiple industries such as pharmacology, financial technologies and software.

In accordance with the recent developments, this Issue will focus initially on the importance attributed by the TCA to the technology undertaking concept, by outlining the Musk/Twitter deal. It will then go on to the recent sector inquiries that have been high on the TCA agenda lately. In this regard, we will summarize the findings of the long-awaited FMCG sector inquiry report and then refer to the market study on digital transformation, highlighting the trends and competition problems emerging from digitalization. We will also mention the TCA’s intervention during the times of crisis, as the TCA initiated a separate sector inquiry into the earthquake recovery markets that were impacted by the major earthquakes that hit Turkey in February. On this note, it is also noteworthy that this tragedy likely raised the workload of the Authority, as it led to multiple oral hearings being postponed, which ultimately creates uncertainty for companies in these challenging times. Finally, we will evaluate co-marketing arrangements from a competition law perspective.

We hope you find this Spring edition helpful.

You can reach the 2023 Spring Issue here.