Compliance Quarterly

Global

Top 5 competition law considerations for consumer facing businesses

Read the full publication, "Top 5 competition law considerations for consumer facing businesses."

Türkiye

Turkish Constitutional Court requires court order for the Competition Authority's on-site inspections

The Turkish Constitutional Court examined the application of an automotive manufacturing company concerning the violation of the right to inviolability of residence and determined that on-site inspection conducted at the company's facilities within the scope of the Law No. 4054 on the Protection of Competition violated the right to inviolability of residence as protected under Article 21 of the Turkish Constitution.

The Constitutional Court, in brief, ruled that: (i) unless there exists a decision duly given by a court or a written order of an agency authorized by law in cases where delay is prejudicial, no domicile may be entered in or searched or the property seized therein, (ii) headquarters, branches and facilities of the automotive manufacturing company are considered as "residential premises" pursuant to Article 21 of the Constitution; (ii) although on-site inspection conducted at the business facilities which are considered as "residential premises" without a court order may be in compliance with Article 15 of the Competition Law, such practice is in violation of the inviolability of residence protected under Article 21 of the Constitution, therefore, the interference with the company's right to inviolability of residence constitutes a violation of such right.

Competition Authority's new approach to online marketplace restrictions

The Competition Authority with its recent decisions published in April 2023 evaluated whether or not the relevant suppliers violated Article 4 of the Law on the Protection of Competition No. 4054 (Law No. 4054) by setting resale prices and restricting internet sales. Some of the material restrictions/requirements foreseen by the suppliers for their selective distribution system and approved by the Competition Authority are as follows:

• Authorized dealers' platform stores should not have practices that direct consumers to competing brands.
• Authorized dealers will be able to sell on platforms where the criteria used for the ranking created based on consumer search are applied equally to each authorized dealer.
• The authorized dealer will be able to sell on platforms where the terms of the contract and commercial conditions are applied to all authorized dealers of the supplier according to objective criteria; The authorized dealer will be able to sell on platforms where the authorized reseller is immediately informed about possible changes regarding the processes and services on the platform.
• The authorized dealer shall be able to sell on platforms that allow and enable it to set product prices exclusively.
• The authorized dealer shall provide the consumer with the opportunity to ask questions in the platform store.
• If there is a period of time or a stock limit regarding the validity of the price, this period and stock amount must be clearly stated in the relevant section of the authorized dealer's platform store.
• The types of campaigns announced by the supplier should also be applied in the platform store to the extent possible.

Competition Board's Approach to Discrimination Claims

As accepted in the decisions of the Competition Board ("Board"), in order for discrimination claims to be evaluated within the framework of Article 4 of the Law No. 4054 the discriminatory behavior must be based on an agreement or a concerted practice or a decision. It is understood that in its decisions, the Board draws attention to the fact that in order for the discrimination claims to be evaluated within the scope of Article 4 of the Law No. 4054 the discriminatory practices must be carried out through agreements/ concerted practices between undertakings or as a result of decisions taken by associations of undertakings, and that only unilateral acts of the undertaking without agreements and/or concerted practices between undertakings shall not be evaluated within the scope of Article 4 of the Law No. 4054, the Board also examines the claims regarding discrimination practices within the scope of Article 6 of the Act, if the undertaking alleged is in a dominant position.

Based on the Board's approach on this matter, it became possible to say that, especially for the undertakings that are not in a dominant position, "unilaterally" applying different sales conditions to its dealers or distributors and/or imposing different commercial terms to its dealers or distributors will not constitute discrimination and such conduct alone will not lead to a competition law violation.