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Two-minute recap of recent developments in Turkish competition law – February 2021

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In early February, the Turkish Competition Board (the “Board”) decided to launch an investigation against Philips Turkey to determine whether the company has engaged in behaviours or decisions resulting in the prevention, distortion or restriction of competition, thus violating Law No. 4054 on the Protection of Competition (“Law No. 4054”).

The Board also determined in February the dates for oral hearings within the scope of the investigations initiated against (i) Unilever and (ii) Google, which will be held in March 2021.

Johnson & Johnson: Did the Board kill selective distribution for pharma?

Drug prices in Turkey are heavily supressed by extensive regulation, and Turkey is one of the cheapest markets for drugs in the EMEA region. Distributors in Turkey therefore have strong incentives to sell their drugs abroad, in the absence of any laws prohibiting parallel exports. Until a recent Board decision concerning Johnson & Johnson, many pharma companies were using selective distribution systems to discourage their distributors from making parallel exports. The Board’s decision against Johnson & Johnson casts doubt on the continuation of the status quo.

In the case in question, Johnson & Johnson requested an individual exemption for a selective distribution system agreement with pharmaceutical warehouses. In its decision, the Board rejected Johnson & Johnson’s application for an individual exemption. According to the Board’s evaluations:

  • the selective distribution system to be introduced is not essential for the pharmaceutical market;
  • there are many products similar to the products subject to the agreement in this market, in terms of the features specified by the applicant;
  • the criteria for the selection of distributors cannot be explained by the features of the products in question;
  • the selective distribution system will limit both active as well passive sales.

Within this framework, the Board concluded that imposing restrictions on the sales of pharmaceutical warehouses would exclude the agreement from the scope of block exemptions. The Board also denied the individual exemption on the grounds that not all of the relevant conditions had been met.

The Board’s FMCG sector inquiry: A preliminary report after four years

FMCG-sector retail sales are one of the most important areas from the Board’s point of view due to its structure and key economic role, and therefore the Board regularly follows and closely monitors developments in this sector. In this regard, the Board published in February a preliminary sector inquiry report regarding FMCG retail sales.

The Board published its first FMCG sector report on 24 May 2012. Following the 2012 report, and after the decision regarding the acquisition of Tesco / Migros, the Board set its agenda regarding the need to initiate a new sector review for 2017. In the fourth year of its review, the Board has now published its preliminary report.

Within the scope of the recent preliminary report, the Board addressed the issues of:

  • determination of market structure;
  • the activities of undertakings;
  • former Board decisions regarding the market;
  • opinions and practices of other competition authorities in different countries.

The preliminary report also suggests that a new legal regulation be made in order to prevent the abuse of buyer power by retailers, and that an independent administrative authority be established to implement this regulation. Needless to say, the Preliminary Report sheds light on important developments for the near future in the fast-moving consumer goods retailindustry.

The Board approved the following merger control filings in February at the Phase I stage:

The Board approved 16 merger control filings in January—the lowest number for the same period in the past three years:

  • Acquisition of sole control of ready-mixed concrete plants in Sincan, Kayaş and Gölbaşı in Ankara controlled by Polat Hazır Beton ve Prefabrik Yapı Elemanları Sanayi ve Ticaret A.Ş. by Votorantim S.A. via Votorantim Çimento Sanayi ve Ticaret A.Ş by leasing.
  • Acquisition of sole control of Asiana Airlines Inc. by Korean Airlines Co., Ltd.
  • Acquisition of sole control of Çiğli Su Teknolojileri Anonim Şirketi by Ebara Corporation.
  • Acquisition of sole control of Al Obeikan SIG Combibloc Company Ltd. and SIG Combibloc Obeikan FZCO’nun by SIG Combibloc Group AG.
  • Acquisition of sole control of Aegon Hungary Holding B.V., Aegon Hungary Holding II B.V., Aegon Poland/Romania Holding B.V. and Aegon Turkey Holding B.V. by Vienna Insurance Group AG Wiener Versicherung Gruppe.
  • Acquisition of joint control of KAZ Minerals plc by Vladimir KIM and Oleg NOVACHUK.
  • Acquisition of sole control of Ege-Tav Ege Tarım Hayvancılık Yatırım Ticaret ve Sanayi A.Ş. by NH Food Ltd.
  • Acquisition of joint control of Louis Dreyfus Company B.V. controlled by Louis Dreyfus Commodities and Energy Holdings N.V., by Abu Dhabi Developmental Holding Company PJSC.
  • Acquisition of sole control of Trakya Et ve Süt Ürünleri Sanayi ve Ticaret A.Ş. by Siniora Food Industries Company.
  • Acquisition of sole control of USK Kimya A.Ş. by Akkim Kimya San. ve Tic. A.Ş.
  • Acquisition of joint control of Üçsa Ambalaj Sanayi ve Ticaret A.Ş. controlled by Sadi KÜÇÜKOĞLU, by Ak Portföy Yönetimi A.Ş. First Venture Capital Investment Fund and Ak Portföy Yönetimi A.Ş. Second Venture Capital Investment Fund.
  • Acquisition of sole control of Primetals Technologies France SAS by Mutares SE & Co. KGaA via Mutares Holding-45 GmbH.
  • Acquisition of joint control of Cytel Inc by subsidiaries of Astorg VII SLP, which is the fund managed by Astorg Group S.à.r.l, and subsidiaries of Nordic Capital Fund X, which is managed by Nordic Capital Cooperation Group SA.
  • Acquisition of joint control of Calisen plc indirectly by BlackRock Alternatives Management, LLC, Nineteenth Investment Company LLC and The Goldman Sachs Group, Inc.
  • Acquisition of sole control of Resins and Functional Materials business of KONINKLIJKE DSM N.V. including coating activities of DSM Niaga, DSM Additive Manufacturing ve DSM Advanced Solar by Covestro AG.
  • Acquisition of sole control of STEAG Rüzgar Süloğlu Enerji Üretim ve Ticaret A.Ş. and STEAG Turkey Enerji Yatırımları ve Hizmetleri A.Ş. by Entek Elektrik Üretimi A.Ş.

About the author

Counsel at | Website | + posts

Bulut Girgin has over 10 years of experience in competition law, regulated industries and compliance. He has advised clients in diverse sectors including telecommunications, FMCG, automotive, construction, media and technology. Bulut has represented various multinational and national companies before the Turkish Competition Board, administrative courts and the Council of State regarding cartel and abuse of dominance investigations and has filed numerous M&A and negative clearance filings with the Turkish Competition Authority. He has also conducted, as both as an in-house lawyer and outside counsel, several comprehensive compliance programmes on competition law, anti-corruption matters and internal investigations.

EDUCATION
2008: Baskent University, LL.B.
2009: Bilkent University, LL.M. (Law and Economics)
2015: King's College London, LL.M., Competition Law, Recipient of Chevening Scholarship form the UK Government
PROFESSIONAL AFFILIATION
Istanbul Bar Association

LANGUAGES
Turkish, English, German

Associate at | Website | + posts

Ceren Ceyhan is an Associate. She focuses on corporate, M&A, law of contracts, consumer law, data protection law and litigation proceedings.

EDUCATION
2018: Istanbul University, Faculty of Law, LL.B.

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