In its decision dated 12.10.2023 , the Turkish Competition Authority (“TCA”) revised certain parts of its interim measures that were made binding upon Mackolik İnternet Hizmetleri Ticaret A.Ş. (“Maçkolik”) – a sports live score tracking application – earlier with its decision dated 07.09.2023 upon Maçkolik’s application for re-assesment pursuant to Article 11 of the Turkish Administrative Procedure Law No. 2577 (“Law No. 2577”) (“Maçkolik II Decision”), by a majority vote. Accordingly, the TCA concluded, regarding the request of Maçkolik to be allowed to carry out its activities through separate websites that meet the TCA’s concerns in its application, alteration of its former assessments on the concrete case became necessary since Maçkolik’s such revisions provided the necessary remedies to address a solution for both websites to coexist. Hence the TCA decided that there was no need for Maçkolik to “eliminate the distinction between old and new websites” which was provided in its previous interim measures.

Background

In its meeting held on July 7, 2022 the TCA launched a full-fledged investigation in order to determine whether D Elektronik Şans Oyunları ve Yayıncılık A.Ş. (“Nesine”) -a company active in sports betting market- violated the Law No. 4054 on the Protection of Competition (“Competition Law”). In the same meeting, the TCA analysed an advertising services agreement concluded between Maçkolik and Nesine, including exclusivity clauses preventing Maçkolik to provide advertising space in its websites to Nesine’s competitors operating in the online betting market. Accordingly, it is assessed that Maçkolik is the most preferred and most known sports live score tracking application in Türkiye and that it is in a considerably stronger position compared to its main competitors. Thus, it is considered that such exclusivity clauses may have a foreclosure effect on the relevant market given the combined power of Maçkolik and Nesine. Therefore, the TCA reached the conclusion that an interim measure decision was necessary to prevent the occurrence of serious and irreparable damages until the final decision is taken (“Maçkolik I Decision”) , and implemented eight detailed obligations, pursuant paragraph four of Article 9 of the Competition Law.

Alteration of the Relevant Part of Maçkolik I Decision

Upon Maçkolik I Decision, Maçkolik applied for the re-assessment of the measure number 6 of the Maçkolik I Decision concerning its following obligation; “Maçkolik should complete the necessary integrations and eliminate the distinction between old and new websites, and should not engage in practices that would lead to de facto exclusivity in advertising spaces and routing domains.”. Accordingly, Maçkolik requested the removal of the part imposing the obligation to continue to provide its services through a single website. In its Maçkolik I Decision, the TCA reasoned that the necessity of such application with the possibility that the de facto exclusivity of Nesine may be strengthened since the old website (i.e., “www.arsiv.mackolik.com”), which is easily accessible through a link containing the logo “mackolik” placed at the top of the new site (i.e., “www.mackolik.com”), contains Nesine’s advertisements more intensively and is more preferred than the new one, resulting in Nesine’s competitors not being able to reach to the potential clients⁴.

Maçkolik stated in its application for re-assessment which is made pursuant to Article 11 of Law No. 2577, that within the scope of the interim measure decision taken by the TCA, it has already started to work to make practices of two website consolidated, and undertook the responsibility and took measures to prevent the realization of applications in both websites that may result in de facto exclusivity.

Further, Maçkolik claimed the following in its application to set forth that the obligation for Maçkolik to provide its services through a single website instead of two websites, contradicts with the principle of proportionality for the following reasons:

i. The distinction between the old site and the new site is not a strict organizational or structural distinction,

ii. The application only arises from the desire to meet the demand that most of the users, who are the consumers of the service in question, prefer the design of the old site rather than the design of the new site because they are used to the interface of the old one,

iii. Maçkolik eliminated the differences between the old site and the new site in terms of advertising areas for virtual betting dealers to fulfil the demands of the TCA, offered packages to all betting companies with equal conditions and equal display opportunities, and adopted a rotation system to provide equal display to the virtual betting sites,

iv. Currently, when entering the old and new website of Maçkolik, no distinction is made between the current cooperation partners E Elektronik Bahis Oyunları A.Ş. (“Oley”), Nesine and Misli Elektronik Şans Oyunlari Ve Yayincilik A.Ş. (“Misli”) (in which an agreement was concluded on 01.10.2023) in terms of providing advertising space,

v. The user ratios of Maçkolik’s old website and the new website are approximately same, however, due to the difference in the interface of both sites, they appeal to different customer groups and the combining of these two sites will mean the loss of a large majority of Maçkolik’s users who access through the old website, and

vi. Even on the assumption that the final decision concluding the existence of an infringement, there is the possibility for the TCA of deciding on the enforcement of many alternative remedies differentiating from the relevant request for unification; therefore, taking a measure as severe and irreversible within the scope of an interim measure decision would exceed the limits defined in the explicit provision of the Competition Law.

Upon the application of Maçkolik, the TCA accepted the request and revised the measure number 6 of the Maçkolik I Decision on the following grounds by a majority vote:

i. In addition to its contract with Oley, Maçkolik started to work with Misli after the interim measure decision came into the force and developed a ranking method to ensure rotational ranking in the redirection applications to different virtual betting companies by clicking on “betting odds” through websites and mobile applications,

ii. With regards to the practices implemented by the undertaking after the interim measure decision became binding, the simultaneous existence of two sites, old and new, will not be contrary to the spirit of the interim measure as long as the undertaking acts in a way that does not restrict competition separately on both sites.

On the other hand, in the dissenting opinion, two board members stated that Maçkolik holds a near “gatekeeper” position in the betting sector, and the decision lacks to address the potential risks that may occur on the grounds that Maçkolik may not make the new site user-friendly and may make it more difficult to access match-related data compared to the old website. Accordingly, it is stated that, through the interim measure decision, while it was intended to rapidly open the market for new entries by implementing a single website design and to encourage existing undertakings to expand with better products and services; by allowing two separate versions of websites continue to co-exist, the effectiveness of the interim measure was weakened, monitoring and testing of its functioning was made difficult.

Conclusion

The TCA’s interim measure decisions undertake such an important role as they are set to impose limitations on undertakings to prevent irreparable damages which will arise in case of the final decision is awaited. Because of such nature, the TCA monitors undertakings subject to an interim measure decision, along with their current positions and actions. Since an undertaking’s status may differ as the time elapse, whether because of external stimulants or of the undertaking’s own wilful actions, the limitations and/or obligations that were made binding upon interim measure decision may also be needed to be revised or withdrawn. In the event such need arises, necessary actions must be taken by the authorities in due course to prevent the occurrence of any further damage or the loss of a right for the undertaking. The Maçkolik II Decision is important in such sense that it addresses a responsive remedy, which is legislated within Article 11 of Law No. 2577, which may keep up with instant developments affecting the nature of an interim measure decision. Although in the dissenting opinion it was set forth some concerns regarding the merits, instead of filing an administrative lawsuit, a prior Article 11 application may satisfy the need to revise caused by instant influential developments.

 

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¹See TCA’s decision dated 12.10.2023 and numbered 23-48/931-330 (Accessible through: https://www.rekabet.gov.tr/Karar?kararId=40ad8c9f-a1f1-43bd-b332-7202d1a14982). The decision was published on TCA’s website on 18.04.2024.

²TCA, pursuant to Article 11 of Law No. 2577, may abolish, withdraw, alter, or implement a new and different administrative action replacing the previous one, upon request by the undertakings concerned. Undertakings may place an Article 11 application to TCA prior to filing an administrative lawsuit, since such course could be a faster and more effective remedy compared to the latter.

³TCA’s decision dated 07.09.2023 and numbered 23-41/797-281.

⁴Maçkolik I Decision provides that Maçkolik stated that both websites are actively used and a new website software combining the two is being developed.