What is next in Turkish Competition Authority s Agenda and how to minimise the risks?

Transcription

1 What is next in Turkish Competition Authority s Agenda and how to minimise the risks? H. Emre Onal Major Trends and Developments in Competition Law Istanbul, 3 December

2 Plan Turkish Competition Authority s (TCA) agenda regarding; Enforcement of general competition rules Cartels Other anti-competitive agrements Abuse of dominance Merger control Main industries in the economy Energy Telecom Automotive Pharmaceuticals Financial services FMCG / Consumer Elect. Transport

3 Cartels Total fines up to 2009 TL 210m Banking Cartel in 2013 TL 1,100m

4 Cartels Largest cartel fines imposed in EU member countries and Turkey: Germany EUR 660m (cement cartel, 2003) France EUR 575m (steel cartel, 2008) Turkey EUR 470m (banking cartel, 2013) UK EUR 260m (tobacco cartel, 2010) Reduced to EUR 380m in appeal Reduced to EUR 75m in appeal Original fine TL 1,100m Appeal on-going Original fine GBP 225m Reduced to GBP 61m in appeal Italy EUR 182m (pharma cartel, 2013) Appeal on-going Spain EUR 120m (re-insurance cartel, 2009) Annuled in its entirety

5 Cartels Experiencing some problems in the practice Evidences can be circumstantial, but not equivocal Single and continuous infringement Knew or should have known the overall plan Contributed to the common objective

6 Cartels Trend seems to continue Settlement procedure (Draft Law) Bounty scheme for cartel whistleblowers (Strategic Plan) Wiretapping as an inspection tool (Strategic Plan)

7 Other anti-competitive agreements Vertical agreements Increasing trend in single branding cases (Efes, Frito Lay, Turkcell, Mey) Got fined on the grounds of abuse of dominance Inconsistent approach on resale price maintenance

8 Other anti-competitive agreements Information exchange is the hot topic TL 278M fine to automotive firms Restriction by «object» - Price and sale strategies - Target and inventory information - No «effect» analysis - Reference to T-Mobile Netherlands

9 Abuse of dominance More focus on exclusionary abusive conduct Exclusive Dealing Refusal to Supply Margin squeeze Predation Tying Bundling

10 Abuse of dominance Exception: Tüpraş case (2014) despite the contrary opinion of the investigation committee (majority) Excessive pricing Tying / Refusal to supply TL 412m fine controversial not clear

11 Merger Control M&A Files Between 2009 and 2013 Approval 902 Approval with conditions 17 Non-approval 1 No need to notify 270 Total 1190

12 Merger Control Significant increase in Phase II investigations 26 Phase II Decisions in 15 years 6 Phase II investigations in one year

13 Sector Specific Approach Energy Financial services Telecommunications Automotive Pharmaceuticals FMCG / Consumer electronics Transportation 13

14 Energy Network Industries Liberalization process not complete Distribution companies Oil and Gas Non-compete obligations Pricing is always under radar

15 Financial Services The risk is not over Sector is still under close scrutiny Information exchange is a permanent risk Insurers and private pensions must be careful

16 Telecom Land line and internet services 3 new + 4 closed investigations in the last year Mainly about restriction of access and price squeeze GSM services 2 closed investigations Mainly about exclusive dealing and price squeeze

17 Automotive 1 Qualitative selective distribution for everyone (aftersales) 2 Multi-brand showrooms and services remain 3 No obligation for providing technical information anymore 4 Green light for restrictions on periodical maintenances within the warranty period 5 No need for general exemption provisions anymore

18 Pharmaceuticals - Not to restrict generic entry (directly or indirectly) - Not to impose commercial conditions that cause exclusivity No need to apply for exemption for the agreements between the tender warehouses

19 FMCG / Consumer Electronics FMCG Single branding/ exclusive dealing Consumer Electronics Resale price maintenance Resale price maintenance Territorial restrictions Territorial restrictions Aftermarket theory

20 Transportation Ro-ro Has been subject of investigation couple of times Airline passenger Slot and flight permit allocation issue must be solved

21 How to miminise the risks? Know your risk Do regular check-ups

22 Questions? These are presentation slides only. The information within these slides does not constitute definitive advice and should not be used as the basis for giving definitive advice without checking the primary sources. Gedik Eraksoy Avukatlık Ortaklığı is a Turkish attorney partnership formed under Turkish Attorneyship Law and registered with the Istanbul Bar to provide legal services in relation to Turkish law. Registered address: River Plaza Kat: 17 Büyükdere Cad. Bahar Sk. No:13 Bağımsız Bölüm No.:45, TR Levent Istanbul, Turkey, Tel: , Fax: , 22