NEWSLETTER-2019-metin

95 COMPETITION LAW The Board, after careful examination of the documents that were obtained, decided not to initiate an investigation, since there was no information, documents, or other evidence that indicated the alleged price fixing between the investigated undertakings. Having said that, the decision is important in the sense that it clearly shows that the Board did not refrain from evaluating or using WhatsApp correspon- dence obtained from the investigated undertakings by the Competition Authority experts, without deeming them to be illegal or unlawful. It is also important to note that in the reasoned decision, while evaluating each of the documents, it is explicitly stated that some of theWhatsApp messages were linked to GSM lines belonging to the undertakings (i.e. Documents 1 and 2), and some of them were obtained from the computers of the relevant employees (Documents 6-10). However, for Documents 3-5, there is only a reference to the existence of WhatsApp correspondence, while there is no mention of the source or means to obtain such correspondence. Therefore, the scope and conditions of obtaining these WhatsApp correspondences from the employees of an undertaking remain unclear. Nature of WhatsApp Correspondences as Evidence In the Mey İçki decision 2 , the Board examined the acquisition of Mey Alkollü İçkiler San. ve Tic. A.Ş.’s (“Mey İçki”) “Tekel Beer” brand by Anadolu Efes Biracılık ve Malt Sanayi A.Ş. (“Anadolu Efes”). In relation to the merger control filing to be notified to the Board as per the transaction, the response letters to request information sent to the undertakings included statements which suggested that the information submitted therein could be evidenced through WhatsApp messages. During the course of its examination of the transaction, the Board, once again, did not deem such inadmissible, and moved on to evaluating the information provided in the response letters. Pursuant to the Frito Lay decision, 3 a former sales chief of Frito Lay Gıda San. ve Tic. A.Ş. (“Frito Lay”) submitted screenshots of WhatsApp correspondences in relation to his allegations that Frito Lay was in violation of Law No. 4054. He further claimed that (i) the sales manager was engaged in activities that violated Law No. 4054, (ii) 2 The Board’s decision, No. 19-06/54-20, 07.02.2019. 3 The Board’s decision, No. 18-19/329-163, 12.06.2018.