Turkish Competition Board’s Swinging Excessive Pricing Axe Did Not Hit Sahibinden.com This Time
Digital platforms are becoming a larger part of our lives each day. We do increasingly more and diverse things on these platforms: we order food, choose our holiday destination, or shop for the car we want to buy. As such, digital platforms are on the radar of many competition authorities, including the Turkish Competition Authority. After Google, Yemeksepeti, Booking.com and Amazon, local online marketplace Sahibinden.com is one of the platforms that, as part of this trend, has attracted the attention of the Turkish Competition Authority. In this article we briefly explain the concept of digital platforms, which is followed by an analysis of the Competition Board’s 2018 infringement decision concerning Sahibinden.com,1 the judicial review process of the Board’s relevant decision and its annulment, and the final conclusion reached by the Board in a second, follow-up decision issued in July 2021.
The Concept of Digital Platforms
Digital platforms essentially act as an intermediary in the online environment. They prepare the online environment to bring consumers and advertisers (customers) together. Consumers often do not pay any fee to view the advertisements or make a purchase/lease from the platform in question, while the advertisers (commercial or individual customers) at the other end of the platform pay a certain commission to place their ads. The most important point for users at both ends of the platform is how intensely other users are using the platform, i.e., the “network effect”. Advertisers will prefer to place their advertisements on the platform that is visited most frequently by consumers. Similarly, consumers will prefer to use the platform with the widest content and most reliable advertisements in order to make an informed decision. A platform with these features can excel in its field and reach a strong position in the market. If a digital platform becomes “dominant” in the market in which it operates, it will not be able to act as freely as a company that is not in a dominant position, as it will have to obey certain obligations under competition law.
The Competition Board’s 2018 Sahibinden.com Decision
In its decision dated 1 October 2018, the Competition Board decided that Sahibinden.com dominates the online advertisement market in the real estate and vehicle sectors and abused its dominant position by imposing excessive prices. The Competition Board came to this assessment by taking into account the bilateral structure of the markets in which Sahibinden.com operates, the number of visits the platform receives, the commercial customers it has (real estate companies, auto dealerships) and the turnover it has obtained from these commercial customers. In addition, the Board also examined the prices that Sahibinden.com charged over a number of years before reaching the conclusion that the company had abused its dominant position by applying excessive prices.
Although the Board mentioned the existence of other players operating in the market and accepted that there were new entrants to the market, by evaluating the factors specific to the case it decided that Sahibinden.com has a higher market share than its competitors and has significant market power to set prices. The Competition Board also stated that the competitive pressure in the market is not adequate to balance such a market power. Accordingly, the Board concluded that Sahibinden.com enjoyed a dominant position in the online real estate and vehicle markets. Despite the opposite majority opinion of the investigation committee, the Board stated that Sahibinden.com offers higher prices in both real estate and vehicle categories compared to its competitors, that this pricing is significantly above the prices that should be observed in competitive markets, and that the market does not have a competitive structure that can correct itself in the short or medium term. Ultimately, the Board decided that the relevant pricing behaviour of Sahibinden.com constituted an excessive pricing behaviour and thus imposed an administrative monetary fine on Sahibinden.com of TL 10,680,425.98 (approximately EUR 1,046,681 based on today’s exchange rate).
The Board’s Sahibinden.com decision has been widely criticised both in terms of the determination that Sahibinden.com enjoyed a dominant position (especially in a dynamic market structure) and in terms of the excessive pricing resolution, which is a type of violation that is only accepted in very exceptional cases. The determinations made on the basis of excessive pricing in this case were applied to online platforms in the identical manner as they were applied to traditional markets, which we find to be an erroneous approach.
Ankara’s 6th Administrative Court unanimously annulled the Competition Board’s infringement decision2 on Sahibinden.com on 18 December 2019. The Administrative Court pointed to the high standard of proof by stating that abuse of dominant position through excessive pricing is an extremely limited and exceptional practice. In this context, the Court underlined that it is possible to intervene in price increases only if such price increases clearly and definitively distort competition and thus harm consumer welfare. In accordance with the decision of the Administrative Court, the findings of the Board must be conclusively proven beyond any doubt. The basis of the annulment decision is that the findings of the Competition Board are based on evaluations made on hypothetical situations and not on material evidence.
The Court’s decision emphasises that a higher standard of proof should be adopted in excessive pricing cases, as is generally accepted and practiced in the United States and the European Union. This conclusion is also backed by the Competition Board’s precedents.3 Especially in the case of multilateral digital platforms, proof of abuse of dominant position due to excessive pricing requires a deeper analysis and conclusive evidence.
The Competition Board’s Re-investigation in 2020
The Competition Board reopened an investigation against Sahibinden.com on 27 February 2020, following the annulment of the previous decision by the Court. In accordance with its short-form decision dated 8 July 2021 and numbered 21-34/475-237, the Board once again determined that Sahibinden.com is in a dominant position in the markets for online advertisement for the real estate and vehicle categories and unanimously decided that it did not abuse its dominant position via excessive pricing in the relevant years (i.e., 2015–2017).
The Competition Board has tended to use excessive pricing cases as a disciplinary tool; however, we understand that the Board’s tactic hit the buffers. Both the Administrative Court’s decision and the Board’s most recent decision signal that a higher standard of proof in excessive pricing cases must be adopted and confirm that assessments on excessive pricing behaviours must be based on solid and concrete findings. The unique nature of multi-lateral digital platforms, as well as the dynamic market structure necessitate a deeper analysis, yet we do not know the grounds behind the turnaround on the outcome on excessive pricing (whether it is a result of the dynamic market structure or the extra-special nature of the infringement type itself). All in all, we believe that undertakings that face a penalty due to excessive pricing now have more solid grounds to defend themselves, even in traditional markets.