Another paper of mine on the Legal Foundation of the Responsibility Arising from the Infringement of Competition Law is published by Banking and Commercial Law Journal (BATİDER). This has lately been one of the hottest topics of the competition law community of Turkey. Generally speaking, under Turkish law the type of liability could be contractual, tort, unjust enrichment or acting without authority. Yet, the type of liability arising from competition law infringements is ambiguous. there are different views in this regard. The vast majority accepts the type of liability arising from competition law infringements as tort liability as the damage does not arise from a contractual relationship between the injurer and the injured but rather from a breach of a general duty owed to everyone. Some others, while agreeing with the initial one, further claim that the type of the liability could also be considered as a quasi-contractual liability where the general provisions of the Law of Obligations concerning contractual liability will also be applicable. I also believe, the type of liability arising from the infringement of Law No. 4054 on the Protection of Competition is considered as tort liability since the liability arises from the breach of a duty owned to everyone. However, depending on the type of the relationship among the aggrieved party and the undertaking infringing the competition law, the aggrieved party can base its claims on the contractual liability due to the infringement of duty of loyalty. Moreover, it can also breach its duty to act in good faith by not revealing the necessary information truly to aggrieved party. This duty to act in good faith is not one of the contractual duties arising from a contractual relationship but rather a behavioural duty arises from the Article 2 of Turkish Civil Code numbered 4721. The importance of the type of liability is more significant especially for the statute of limitations, burden of proof for the fault; and joint liability of the infringers.
My paper (here) on the acquisitions of minority shareholdings is published by the Competition Journal of the Turkish Competition Authority. Acquisitions of minority shareholdings can be divided into two diverse types. In the first type, a controlling shareholder acquires a non-controlling minority share from another firm. In the second type, a non-controlling shareholder acquires another non-controlling share from another firm. This would be the case (for example) where the same investment fund acquires minority shareholding from two different firms. In this paper, I did not analyse the second type but rather focused on the first type where a controlling shareholder (or the firm itself) acquires non-controlling share from another firm. Under Turkish merger control regime, in order for a merger or an acquisition transaction to fall within the scope of Communiqué No. 2010/4, a permanent change in control is required. However, acquisition of non-controlling minority shareholdings could raise certain competition law concerns especially in cases where there is a horizontal or vertical overlap among the activities of the parties. To illustrate, an acquisition of non-controlling minority shareholding from a competitor could create an incentive for the acquirer to unilaterally increase its price since such acquisition will allow the acquirer to recapture some of its lost profits through the minority shareholding and thus will be able to gain more profit from a potential price increase. Similarly, an acquisition of non-controlling minority shareholding from a competitor could reduce the incentive of the acquirer to deviate from the cartel and thus enable the cartel to be more sustainable. Intuitively, the acquirer will have to bear some of the loss made by the other cartel participant in which it has minority shareholding.
My new paper (here) where I analysed the relationship between pricing algorithms and competition law within the framework of Article 4 of Law No 4054 on the Protection of Competition, is published by the Journal of Galatasaray University Faculty of Law. As we all know, the digital age affects the consumer behaviour in an increasing pace. While in the past consumers were only using online platforms for booking a plane ticket or a hotel room, nowadays, consumers can perform banking transactions, order a taxi or purchase their needs. The demand shift towards to online platforms naturally necessitates a shift from supply side as well. Undertakings’ sifting towards online platforms affected the competitive landscape. Undertakings, through better data collecting and analysing tools, can easily analyse the factors affecting the price and adjust sale prices instantly with very low marginal costs. The ability of undertakings to optimize their pricing strategies through algorithm driven software, increased the use of such tools. This, in turn, raised the question whether undertakings can use algorithms to behave in anti-competitive way. Together with efficiency gains associated with pricing algorithms, they can provide undertakings with new tools to behave anti-competitively. Whereas pricing algorithms can be used to implement an anti-competitive agreement, they can lead to anti-competitive pricing even in the absence of an agreement. Likewise, self-learning algorithms, even in the absence of a human will, can identify coordination as optimal strategy through trial-and-error and lead to decrease in consumer welfare.