ERDEM-NEWSLETTER-2018-metin

99 COMPETITION LAW still in the market, and which are known by consumers, without their making any promotions or advertisements. Furthermore, the Board determined that importation does not constitute sufficiently competitive pressure in the related market. The market shares of the undertakings that operate through importation are low due to the changes in foreign exchange rates, the amount of the special consumption taxes, as well as consumer habits. Moreover, the Board states that Efes and Tuborg, the two biggest producers in the market, have a seriously unutilized capacity. The Competition Board divides the beer market into two groups regarding points of sale. The closed points of sale (“CPS”) are the points of sale that sell the products to the consumers as closed, such as grocery stores, super markets, or kiosques. Open points of sale (“OPS”) are places, such as hotels, restaurants, or bars where the products are sold to consumers for immediate use, generally with food, music and accommodation services. Various permits are required for the sale of beer in both of these points of sale. Previous Competition Board Decisions The Decision of the Competition Board dated 22.04.2005 and numbered 05-27/317-80 (“Decision on Revocation of Exemption”) is related to the exclusivity agreements of Efes and Tuborg that they concluded with CPS and OPS. According to the said Decision, the group exemption provided to both producers’ vertical agreements that include exclusivity, and which are concluded with the said points of sale, is revoked. In this Decision, it is determined that Efes is in the dominant position, that it is difficult to enter into the market as a producer, importation is not at an important level, and there is no sufficient competition in the market. Furthermore, the surplus capacity of Efes and Tuborg, the limitations on advertising in the sector, and the fact that the points of sale are not financially strong, are also taken into account. Hence, in light of these determinations, the group exemptions that had been granted to both Efes and Tuborg’s agreements, including exclusivity, with the points of sale, was revoked.