Competition Law and Policy in Turkey - Recent Developments and Prospects - Part one (Article)

By Yusuf-Kaan Gurer, LL.M. Candidate (Istanbul), Ph.D. Candidate (Cologne)

Introduction 

According to the World Economic Forum's latest Global Competitiveness Report [1] (GCR) Turkey is "one of the countries that improved most in the GCI rankings" in 2012 by moving up 16 places to attain the 43rd spot. The country's continued and rapid economic growth - 8.4% in 2011 - goes hand in hand with considerable improvements in its competition policy. 

Driven by the accession negotiations with the European Union and eager to liberalize its economy, in 1994 Turkey introduced Act No. 4054 on the Protection of Competition [2] (Act 4054) with the aim "to ensure the protection of competition by performing the necessary regulations and supervisions". In order to enforce the provisions of this Act, three years later, in 1997 the Turkish Competition Authority [3] (TCA) became operational with the Board (TCB) as its decision-making body. 

This series of three articles will give an overview of the recent developments in Turkey's aim to modernize its competition law regime to further boost effective competition and thus economic wealth. While Part I focuses on cartel prohibition, Part II will deal with dominance and, finally, Part III with merger control.

Reading recommendation on private cartel damage claims NOW AVAILABLE

A couple of weeks ago the Berkeley Global Antitrust Blog recommended to our readership an article that was published by one of our Managing Board Members, Till Patrik Holterhus and his colleague Dr. Jochen Bernhard. 

The article’s title is “Kartellrechtliche Schadensersatzansprüche in mehrstufigen Absatzverhältnissen: ein europäischer Kontrapunkt zum U.S.-Antitrust-Recht“ (“Private cartel damage claims in multi-level distribution chains: a european contradiction to US antitrust law“). 

The full article is now available on the Blog. (It also can be found in the July issue (no. 7) of the German Journal “Recht der Internationalen Wirtschaft“, pages 470 et seqq.)

Download it over here.

When Internet Traffic and Peering Agreement meet French Competition Law

By Nathalie David, Ph.D., Berkeley LL.M. Candidate

On September 20, 2012, the French Competition Authority (Autorité de la concurrence) released an interesting decision that is believed to be the first on this topic by a competition authority. It confirms that data network operators who conclude an agreement to organize peering – the voluntary interconnection of separate data networks and the exchange of data between these networks – can charge fees for the opening of additional data transit technical capability.

The Supreme Court of Chile Upholds Record Fines for Pharmaceutical Industry Cartel (Article)

By Benjamin Gomez, Attorney at Law, UC Berkeley LL.M. candidate 

On Friday September 7th, 2012, the Supreme Court of Chile released a final decision on one of the most important cases in the recent history of Chilean competition law.

The unanimous decision affirmed the ruling of the Antitrust Tribunal (Tribunal de Defensa de la Libre Competencia – TDLC) on January 31st of this year, which found two of the three major pharmaceutical companies in Chile, Salcobrand and Cruz Verde, guilty of collusion, in what can be considered the biggest cartel case assessed by modern antitrust authorities in Chile since their creation. The third company involved – Farmacias Ahumada – was deemed free from all liability by participating in a groundbreaking agreement of what would become the current leniency program (Chile’s version of a whistle-blower program) implemented by the National Antitrust Prosecutor (Fiscalia Nacional Economica – FNE).

Why the FTC should block the Universal/EMI merger (Article)

By Gabriel Bluestone, antitrust attorney, Girard Gibbs LLP, San Francisco

Antitrust enforcement has seen a welcome revival during President Obama’s first term. A highlight of this resurgence was the Department of Justice’s suit to block the proposed mega-merger between AT&T and T-Mobile last fall. Following an exhaustive investigation, the DOJ challenged and ultimately blocked the proposed merger in an effort to maintain a competitive wireless marketplace and ensure that the antitrust laws remained, as Justice Marshall stated, “the Magna Carta for free enterprise.”

Reading recommendation on private cartel damage claims

Today the Berkeley Global Antitrust Blog would like to recommend to our readership an article that was published a couple of weeks ago by one of our Managing Board Members, Till Patrik Holterhus and his colleague Dr. Jochen Bernhard. 

The article’s title is “Kartellrechtliche Schadensersatzansprüche in mehrstufigen Absatzverhältnissen: ein europäischer Kontrapunkt zum U.S.-Antitrust-Recht“ (“Private cartel damage claims in multi-level distribution chains: a european contradiction to US antitrust law“). 

In its first part, the article discusses the field of private cartel damage claims from an international perspective (US, EU Canada, UK, France, Italy, Germany), primarily focussing on the issue of the eligibility (“locus standi”) in such claims and the related problem of the so-called passing-on-defense. The article - in its second part - further deals with the recent developments in German antitrust adjudication and its relation to EU adjudication (Courage case and Manfredi case) on private cartel damages claims. 

The German article can be found in the July issue (no. 7) of the German Journal “Recht der Internationalen Wirtschaft“, pages 470 et seqq. 

An abstract can be found here.

Spanish government takes action against anticompetitive behavior in the Sherry wine industry (Guest article)

By Francisco Marcos, Professor of Law, Center for European Studies Madrid, LL.M. Berkeley Law

The American oak casks used for winemaking in the “Sherry Triangle” (an area in the Spanish province of Cádiz) have recently been the subject of scrutiny by the Spanish Government. According to separate enforcement actions by the Spanish National Competition Commission (hereinafter NCC) in the last three years several anticompetitive arrangements between various producers have dragged down market competition in the Sherry industry (all the decisions by the NCC can be downloaded here).

Merger review bill discussed in Peru (Guest article)

By Francisco Marcos, Professor of Law, Center for European Studies Madrid, LL.M. Berkeley Law

Peru lacks a general merger control regime (only transactions in the energy sector are subject to control by INDECOPI, in accordance to Ley Nº 26876). That could be one of the reasons why some of Peruvian’s industries and sectors of economic activity show high levels of concentration.

Recent Korea Fair Trade Commission developments to affect IP practices

By Kee-Hong Chun, Attorney at law

The intersection between competition law and intellectual property law has been a contentious issue and one that is currently increasing in Korea. 

The Korea Fair Trade Commission (“KFTC”) recently recognized the abuse of intellectual property rights as a priority for enforcement. To this end, the KFTC amended the “Guidelines on the Examination of the Exercise of Intellectual Property Rights”, which came into effect on April 7th, 2010, to provide guidance and set forth scenarios illustrating the possible unfair exercise of intellectual property rights in licensing (including cross-licensing), patent-pooling and standard-setting activities. In 2010 and 2011, the KFTC conducted intellectual property right abuse surveys in the pharmaceutical, IT, chemical and machinery industries. 

Pleas in law and main arguments in Microsoft/Skype case released

By Till Patrik Holterhus, MLE.

As covered earlier on the Berkeley Global Antitrust Blog on October 19th, 2011 and March 16th, 2012 the European Commission's clearence of the Microsoft/Skype merger was brought to the General Court by Cisco and Messagenet. Two days ago, on April 14th, 2012 the pleas in law and main arguments were released in the Official Journal of the European Union:

"1. First plea in law, alleging that the European Commission committed a manifest error of assessment in holding that the merger would not raise any anti-competitive horizontal concerns in the consumer unified communications markets. In this connection, the applicants stress that the merger leads to combined market shares of more than 80 % in the narrowest possible market examined in the decision (video call services to consumers on Windows-based PC). Both the combination of powerful network effects accruing to the largest installed base of users and the merging company’s full control of the Windows Operating System and other adjacent applications will reinforce the dominant position and eliminate any incentive which the merged entity may have to offer interoperability with competing products;