Author: Merve Bakirci
Introduction
Pursuant to Article 9/4 of the Law on Protection of Competition (“Law No. 4054”), “where serious and irreparable injuries are likely to occur before the final decision, the Board may take interim measures in order to maintain the situation before the infringement, without exceeding the scope of the final decision.” Accordingly, the Turkish Competition Board (“Board”) has the power to apply an interim injunction to investigated undertakings, where it deems, irreparable injury is likely to occur. Considering the fact that investigations last around two years, the relevant provision is clearly a much-needed tool that the Board may use to prevent any probable harms arising from serious competition law concerns. The Board’s recent decisions highlighted below exhibit when and how Board uses the interim injunction tool.
The Retailers’ Decision
In its Retailers’ Decision[1], the Board investigated the pricing behaviors of chain stores and their suppliers during Covid-19, following applications which entered Turkish Competition Authority’s (“Authority”) records with regards to sudden and high increases in prices in nutrition and cleaning products. It was alleged that top nine chain stores had agreed on a mutual excessive pricing behavior for these products by way of an implicit co-operation and thereby were in breach of Article 4 of Law No 4054.
The Board assessed that the stores had increased their market power due to the Covid-19 pandemic and Ramadan by taking advantage of changes in living conditions of consumers. It determined that the stores were oligopolistic in nature on both the sale and purchase sides of the market and therefore were able to avoid competition in prices. The Board also suggested that chain stores were enjoying this market power to get cheap products from suppliers, while increasing the price of the same products for consumers.
Applying Article 9/4 to these facts, the Board decided that all price increases with regards to nutrition and cleaning products had to be submitted to the Authority until the end of the investigation period.
The WhatsApp Decision
In its later dated WhatsApp decision[2], the Board similarly decided to apply an interim injunction regarding Facebook’s decision to use WhatsApp users’ data in relation to other services. The basis of this decision was Facebook’s widely reported announcement that commencing from 08.02.2021, WhatsApp users would be obliged to consent to the transfer of their data to Facebook group companies. According to the Board, this raised competition law concerns.
In its decision, the Board firstly assessed WhatsApp’s nature and its market power. Its evaluation showed that WhatsApp was an application having more than two billion users in 180 countries, and that it had access to its users’ messages, locations, pictures, and other information stored on their devices. The Board concluded that through WhatsApp, users shared more private information in smaller groups compared to what they shared on Facebook. Therefore, such information was classified as more confidential in nature.
Secondly the Board assessed the competition law concerns arising from Facebook’s announcement. It decided that through this obligation, (i) WhatsApp data could be tied to Facebook products and data, (ii) Facebook could use its power in the consumer communications market in a way to obstruct its competitors in the internet advertising market, (iii) consumers could be exploited through excessive data collecting and sharing of such data with other services...
[1] The Board’s Decision dated 07.05.2020 and numbered 20-23/298-145
[2] The Board’s Decision dated 11.01.2021 and numbered 21-02/25-10
