On 4 April 2017 the Turkish Competition Authority’s (“TCA”) received and subsequently published the decision of the Council of State in relation to Microsoft case. In October 2016 the Council of State reversed the decision No 11-60/1555-550, where the TCA concluded that there was no need to initiate an investigation into Microsoft Bilgisayar Yazılım Hizmetleri Ltd. Şti.’s (“Microsoft Turkey”) activities on the implementation of its Project 3+ (the “Project”). Hence, the TCA will have to launch an investigation into Microsoft Turkey’s activities.
Complaint
Istanbul Chamber of Artisans of Cybercafés (“Chamber”) on 28 July 2011 submitted a complaint to the TCA claiming, among others, that Microsoft, by abusing its dominant power, (i) forced the cybercafés to buy several Microsoft products as a part of a project called “Project 3+”, (ii) intentionally decreased the number of distributors/authorized dealers by setting unjust requirements, and (iii) paying an illegal commission fee to certain chambers for each sale.
Microsoft Turkey stated that contrary to allegations each product could be purchased individually. Further, it argued that Microsoft Turkey’s right under the Law to set certain requirements for its distributors/dealers to meet, and the said requirements were fair and logical. The TCA rendered its decision in lieu with Microsoft’s arguments, and decided not to initiate an investigation.
Appeal
TCA’s decision was appealed, and finally brought before the 13rd Chamber of the Council of State (the “Council”). Without deep-diving into the merits of the case, the Council decided on 25 October 2016 that the TCA’s decision was based on an inadequate examination, and that Microsoft Turkey’s activities may have been considered as “concerted practice” and “abuse of dominant position”, had the case been investigated. Therefore, TCA’s decision was reversed.
Implications
The Council’s decision will lead the TCA to launch a an investigation against Microsoft Turkey as it cannot move forward contrary to the Council’s decision according to the code of administrative procedure.
Bahadır Balkı
