The Turkish Competition Authority (“TCA“) published its 2022 Annual Report (“Report“) on its official website on August 23, 2023. The Report provides an overview of the TCA’s activities in 2022.
The Report’s foreword emphasizes the requirement of stricter enforcement of the competition law to maintain the healthy competitive environment and recaps the developments in 2022 as the increase in atypical violations, the expansion in the competition law’s scope of application with the introduction of new business models and the deepening in its nature. In addition, according to the foreword, as part of the TCA’s competition advocacy role, institutional activities such as sector inquiries in markets with structural defects, contributions to legislative studies, and active involvement in the norm-building process in the international arena intensified in parallel with economic dynamism.
Amendments and Legislative Changes
In 2022, the most notable amendment was on the Communiqué No. 2010/4 on Mergers and Acquisitions Requiring the Approval of the Turkish Competition Board (“Communiqué No. 2010/4”). With the amendment, the Communiqué No. 2010/4’s scope was extended to catch killer acquisitions. Accordingly, the acquisition of undertakings active in Turkey or carrying out R&D activities or providing services to users in Turkey in the fields of digital platforms, software and game software, financial technologies, biotechnology, pharmacology, agrochemicals, and health technologies or their related assets would become subject to clearance irrespective of their turnover. In addition, the turnover thresholds for the notification of the transactions under the Communiqué No. 2010/4 were increased and the calculation of the turnovers of financial institutions were updated.
Also, in 2022, the TCA updated its Guidelines on the Assessment of Horizontal and Non-Horizontal Mergers and Acquisitions to make them parallel with the introduction of significant impediment to effective competition (SIEC) test to the Law No. 4054 on the Protection of Competition in 2020.
The Report reveals that currently the only ongoing legislative study is on the Digital Markets Regulation which is expected to bring ex ante obligations on undertakings with significant market power in digital markets similar to the European Commission’s Digital Markets Act.
Letting the Numbers Talk
Compared to 2021, there is a slight decrease (approximately 16%) in the number of the TCA decisions. The TCA issued decisions for 405 cases in 2021 and 342 cases in 2022. Approximately 72% of these cases in 2022 were related to M&A, 23% concerned competition law violations, and the remaining 5% were about individual exemptions and negative clearances.
- Competition Law Violations: The TCA concluded 78 cases regarding competition law violations in 2022, of which 54 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 2021, where the TCA issued decisions for 74 cases, 44 of which were given after full-fledged investigations.
- Out of 78 cases, 58 were related to anti-competitive agreements (38 of them were between competitors, 25 were between undertakings at different levels of the supply chain, one were hybrid); 14 were related to abuse of dominance and six were hybrid.
- The TCA rejected the allegations in 20 out of 24 preliminary investigation files.
- While the TCA finalized 54 investigations in 2022, it launched 47 new full-fledged investigations and the number of ongoing investigations as of 2022 is reported as 45, where 39 of them were launched in 2022.
- The investigations mostly concerned five sectors: (i) food industry; (ii) machinery industry; (iii) other sectors; (iv) health services, and (v) IT & platform services.
- Five out of 54 investigation files were concluded with commitments and 34 files were concluded with settlement. These support the Report’s assessment that the Commitment Communiqué and the Settlement Regulation, which were entered into force in 2021, has been effectively implemented in 2022.
- Mergers and Acquisitions: In 2022, the TCA reviewed 245 transactions in total, a 21% decrease compared to 309 transactions in 2021. Compared to 2021, there is a 21% decrease in the number of cases. One of the reasons for this drop in the number of filed transaction can be the increased turnover thresholds pursuant to the Authority’s Communiqué No. 2022/2 on Amending Communiqué No. 2010/4 Concerning the Mergers and Acquisitions Requiring the Approval of the Turkish Competition Board, which entered into force on May 4, 2022.
- Of these 245 transactions, 160 were acquisitions, 76 were joint ventures, 7 were privatization and two were mergers.
- The TCA unconditionally cleared 209 of these transactions, while conditionally approving two transactions. 34 of the total transactions were found to be out-of-scope or not subject to the approval of the TCA.
- According to the Report, the TCA took five transactions into Phase II review, four of which were concluded in 2022, and the remaining one is still undergoing Phase II review.
- The top three industries in terms of M&A transactions were reported as chemistry and mining; IT & platform services; and healthcare services.
- For detailed information, you may find our legal alert on the TCA’s M&A Overview Report for 2022 here.
- Exemptions and Negative Clearances: The TCA finalized 15 cases regarding exemptions and four cases concerning negative clearances in 2022, across nine different industries led by banking, capital market, finance and insurance services.
- The TCA granted five individual exemptions; three block exemptions and four exemptions on conditions.
- One entity’s exemption was revoked and in two decisions, individual and block exemptions were evaluated together.
Administrative Monetary Fines
The Report provides a full comparative yearly summary of the administrative monetary fines imposed on the undertakings.
- Compared to 2021, there is a significant decrease in the amounts of the fine imposed on merits in 2022. While the TCA issued a total of TRY 4.2 billion fines in 2021 due to competition law violations, this decreased to TRY 1.73 billion in 2022.
- The highest total fine was levied in food industry with TRY 1.118 billion, which is followed by IT & platform services and agriculture and agricultural products.
- Fines for anti-competitive agreements, concerted practices, and decisions of association of undertakings amounted to TRY 1.379 billion, whereas fines for abuse of dominance amounted to approximately TRY 352 million.
- Fines for false or misleading information in terms of requests for information and on-site inspections amounted to TRY 3.5 million.
- Fines for preventing or hindering on-site inspections amounted to TRY 115,268,236
- No fines were imposed for gun-jumping in 2022.
The Report describes 2022 as a very busy and productive year where the TCA maintained all its functions without any interruption in relation to the enforcement of competition rules, which constitutes its main task, and carried out its enforcement activities without any disruption. The TCA kept the improvement of institutional capacity as one of the priority objectives in 2022 and underlined the importance of performing an institutional self-assessment to improve future outcomes based on experience. The TCA noted that, as in previous years, developments in national and international markets, relevant literature, and practices of other countries were also closely monitored. To achieve its vision within the framework of the accumulated knowledge gained from the studies and the Strategic Plan for 2019-2023, the TCA emphasized that it would continue its activities in the upcoming period to fulfil its mission in the best possible way.