Diverging Approaches for the Most Favoured-Customer Clauses: TCA’s Yemeksepeti.com Decision

While new business models in the online world emerge at an unprecedented pace, interpretation of legal rules has lagged behind those innovations. In particular, interpretation of competition rules may be far from being a guide for the lawfulness of novel business models. On one hand, such an inadequacy leads to legal and business uncertainty, on the other hand it restricts the attorneys counselling clients contemplating the adoption of novel business models in the online world. The diverging approaches of competition authorities all around the world for most favoured-customer (MFC) clauses have been a recent example of this phenomenon.

Most of the competition proceedings concerning the MFC clauses in different countries closed with the commitments given by the investigated firms. Investigations concerning online travelling agencies in Italy, Sweden, France, and United Kingdom ended with commitments that abolish some types of MFC clauses. However, for a similar investigation, the German competition authority (Bundeskartellamt) has banned all types of MFC clauses with an infringement decision. Nevertheless, Bundeskartellamt approved the commitments of the investigated party and did not impose any fine.

MFC issues are not only restricted with online travel agencies, e-book sellers, and publishers have also been investigated on both sides of the Atlantic. In the United States, Apple and e-book publishers were investigated concerning the MFC clauses. While the court found that MFC is lawful, it concluded that Apple had facilitated a conspiracy for price fixing of the publishers through MFC clauses. In Europe, investigations for Amazon.com have taken place at both the Commission level and the national level, Germany. Recently both the Commission and Bundeskartellamt ended the investigations with the commitments about the MFC clauses.

In the meantime, an investigation started by the Turkish Competition Authority (TCA) concerning the MFC practices of Yemeksepeti.com, an online food-ordering platform, concluded with an infringement decision. Although the commitment of Yemeksepeti.com was welcomed by TCA, the decision also imposed a fine to the company. In that sense, TCA’s Yemeksepeti.com decision has contributed to the diverging approaches of the competition authorities for the evaluation of MFC practices. TCA has also reinforced its view by its recent Booking.com infringement decision.

In a recently published article we examine the legal and business uncertainty created by diverging approaches for MFC clauses. Since most of the investigations concerning the MFC clauses terminated with commitments, we have not had many opportunities to learn much about the analysis of the authorities. Moreover, disparity in the evaluation of MFC practices in infringement decisions has also increased these uncertainties. Therefore, we elaborate Yemeksepeti.com decision in order to exhibit the problematic considerations of the TCA for MFC practices.

The reference of the article is given below:

Köksal, E. & Ardıyok, Ş. (2018). Diverging Approaches in Europe for the Most Favoured-Customer Clauses: How Turkish Competition Authority’s Decision for the Online Food Ordering Market Contributed. Journal of European Competition Law & Practice, 9(2), 119-123. http://doi.org/10.1093/jeclap/lpx091

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