The investigation to determine whether Turkcell İletişim Hizmetleri A.Ş violated articles 4 and 6 of the Act no 4054 by preventing competition in the relevant market by means of exclusivity provisions related to the obligation to supply to a single buyer in the contracts concerning the installation of base stations/towers to which it was a party directly or indirectly was concluded.

The investigation was initiated after the 13th Chamber of the Council of State annulled the Board decision dated 22.04.2009 and numbered 09-17/381-90 concerning the same issue. According to the Board decision in question, practices of Turkcell and Kule A.Ş., whose shares were entirely held by Turkcell, did not include objectionable provisions as per articles 4 and 6 of the Act no 4054 due to the provisions of the Communiqué of ICTA in force; therefore, it was concluded that it was not necessary to make any proceedings within the scope of the act no 4054 and to initiate an investigation about Turkcell.

Then, the complainant Avea İletişim Hizmetleri A.Ş. appealed the decision and the 13th Chamber of the Council of State annulled the Board decision with its decision dated 18.12.2012 and numbered 2009/5862 E., 2012/3883 K.

The decision of the 13th Chamber of the Council of State made an assessment related to the borders of the competence of regulatory authorities and the Competition Authority. Moreover it was stated in the decision that depending on the provisions of the Communiqué of ICTA, the finding that Turkcell, which previously installed facilities on the areas that were the subject of the complaint, was responsible for sharing facilities and the complainant had a right to request sharing facilities on those areas and to apply to ICTA in case Turkcell rejected such request was insufficient alone. It was also stated that the articles of the Communiqué did not directly remove the effects of the rental contracts including exclusivity provisions with respect to competition law.

Moreover, the decision highlighted that it was clear that the borders of the market where the alleged violation took place defined as "the service market for leasing base station areas" in the Board decision numbered 09-17/381-90 should be drawn; economic, sociological, bureaucratic and geographical factors as well as the powers of market players in that market should be identified and practices related to leasing base station areas and the consequences of such practices with respect to competition law should be laid down. Therefore, given the aims and principles of competition law and the procedure provided for in the Act no 4054, an investigation should be initiated about a complaint based on a claim that the act no 4054 was violated.

As a result, an investigation was initiated, which examined the contracts about the installment of base stations/towers, to which Turkcell was a party directly or indirectly and assessed the existence of alternative immovables and facility sharing practices.

As a result of the discussion of the contents of the file by the Competition Board on 13.08.2014, it was decided that Turkcell held a dominant position in the GSM services market during 2006 and 2010; however, it did not violate the Act no 4054 with the exclusive facility arrangements it included in the rental contracts related to the installment of base stations/towers, to which it was a party directly or indirectly in the period from 2006 until the end of the 6th month of 2013. Therefore, it was decided that it was not necessary to impose administrative fines to the aforementioned undertaking.

Click here for the text of the pronouncement (in Turkish) dated 13.08.2014 and numbered 14-28/585-253, the reasoned decision for which will be notified later and which can be appealed before Ankara Administrative Courts.