Turkey: How Does The Turkish Competition Authority Deal With Market Analysis In Information Exchange Cases? Lessons From The Syndicated Loan Decision

Market definition is a significant instrument, which helps antitrust enforcers to detect market behavior violating the competition rules. However, in some cases defining the relevant market is not as important as it seems, particularly in cases where the infringement is related to Article 4 of the Act No. 4054 on the Protection of Competition (Competition Act), which is the counterpart of the Article 101 of TFEU under European Competition Law.

Pursuant to the Guidelines on the Definition of Relevant Market¹ (Relevant Market Guidelines), Turkish Competition Authority (TCA) may choose not to define a relevant product market or a geographical market in the following scenarios:²

• The case under scrutiny does not pose a competition law related concern depending on potential alternative market definitions or
• The effects distorting competition are present for all of the potential market definitions.

Defining the relevant market is crucial for the assessments made by the competition authorities, especially and intrinsically when an alleged abuse of dominant position is put under the scope, as detecting dominance requires drawing a detailed framework related with the scope of market. On the other hand, even though market definition is characterized as a competition law tool that is usually utilized for assessing the abuse of dominance cases, there are certain instances where market definition moves to the forefront in cases related with Article 4 of the Competition Act, such as exchange of information between competing firms.

Syndicated Loan Decision³ of the TCA could be listed among such cases, where defining relevant market weighs heavily for the assessment required by the circumstances at stake. The Syndicated Loan Decision, as mentioned in details in our recent article, focuses on the allegations of competitively sensitive information exchanges between the parties active in the market for corporate loans and contains an offbeat example of information exchange assessment.

As described in the Guidelines on Horizontal Cooperation Agreements (the Guidelines), the primary concern stemming from information exchanges between the competing undertakings are "collusive outcome" and "market foreclosure". While market foreclosure is considered to ground on the collusive outcome, there are certain market-related parameters listed in the Guidelines that have an influence on the impact of the information exchanges at horizontal level.⁴

First parameter, which is considered to influence the anti-competitive effect of the information exchange, is the transparency of the market. Pursuant to the Guidelines, transparency of the market signifies the possibility of collusive outcomes to occur, owing to the fact that the uncertainties concerning prices, quantities, demand etc. in a market becomes less prominent as the market becomes more transparent. Furthermore, the Guidelines assume that the markets with higher concentration rates would more likely to pave the way for a collusive outcome. That is because the markets of high concentration rates consist of fewer firms, which are able to coordinate and monitor the coordination more efficiently than a greater group of undertakings.

Moreover, the Guidelines list the complexity of the market as one of the parameters, expressing that it is harder to achieve a collusive outcome in a complex market such as the markets that consist of non-homogenous and differentiated products, since more information should be exchanged between the colluding parties in order to achieve their goal.

The Guidelines also take the parameters such as stability and symmetry of the market into account when determining the anti-competitive effects of the information exchanges. Per the Guidelines, less volatile markets in terms of supply and demand conditions, namely stable markets, are more suitable for a collusive outcome as predicting the reason behind competitors' strategic behaviour is easier in such markets. Accordingly, in symmetric markets, where the competitors are similar in certain aspects; such as cost, demand, market share, product range and capacity, a collusive outcome is more likely to occur, due to similar competitive motives of the market players.

In the Syndicated Loan Decision, the TCA did not make an assessment regarding the parameters such as stability, symmetry, concentration and transparency, which are acknowledged as the market characteristics that have influence on the effect stemming from information exchanges, contrary to the approach adopted in the Guidelines. Although it examines the market structure, the Decision lacks a detailed analysis regarding the above-mentioned characteristics of the market listed in the Guidelines. When the relevant precedents of the TCA are examined, it is eventual to deduce that the TCA chose an unconventional way by refraining to make an assessment regarding the market characteristics in the Syndicated Loan Decision. For instance, in the Automotive Decision, where the TCA focuses on exchange of information concerning pricing strategies among automotive distributors, market characteristics such as concentration and the circumstances related with demand and supply are considered.⁵

Furthermore, it is noteworthy to mention that the TCA also refrained from defining the relevant product market by referring to the Relevant Market Guidelines and stated that defining the relevant product market would not change the assessment made by the TCA. Surprisingly enough, the Syndicated Loan Decision includes a relevant geographical market definition, despite the fact that such assessment was deemed insignificant as to the relevant product market definition. It is also uncommon for the TCA to define the relevant geographical market as "Turkey", despite the fact that the Decision contains certain determinations indicating that long-term loans received from foreign financial institutions substitute the ones borrowed from domestic counterparts.

The Syndicated Loan Decision is a gripping example that enable us to point out how to make an accurate assessment in order to decide whether an information exchange is anti-competitive or not, which includes unconventional ways of assessment such as absence of market characterization and contrasting preferences concerning the market definition.

Footnotes

1. Please see; Commission Notice on the Definition of Relevant Market for the Purposes of Community Competition Law, for detailed information about the principles set forth by European Commission in the matter of relevant market definition, https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:31997Y1209(01)&from=EN, last date of visit 15.08.2018.

2. Guidelines on the Definition of Relevant Market, para. 20.

3. Decision of the TCA dated 28.11.2017 and numbered 17-39/636-276.

4. Guidelines on Horizontal Cooperation Agreements, para. 60-66.

5. Decision of the TCA dated 18.04.2011 and numbered 11-24/464-139.

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