NEWSLETTER-2020-metin

184 NEWSLETTER 2020 The court made a reference to the concept of “Economic Value Test” applied in the EU on excessive pricing, and stated that it should be examined as to whether a high profit margin was found by comparing the costs and prices of the products. If there is such an extreme differ- ence between cost and price, as a second step, the difference should be compared with prices in competing products or similar markets. Thus, the court appears to have accepted the two-stage Economic Value Test. However, this test was not applied by the Competition Authority in the Sahibinden Decision on the grounds that some of the costs are also related to platform services outside the relevant markets, and it is not possible to separate them. The court noted that since excessive pricing is an area that is ‘exceptionally’ interfered with by the Competition Authorities, it should be demonstrated with data and facts “beyond question.” In this respect, it is understood that the court is looking for a very strict standard of proof for intervention that completely changes the pricing policy of an undertaking, such as excessive pricing. The court then revealed the legal deficiencies in the Sahibinden Decision. In the Annulment Decision, it was stated that undertakings operating in different markets were compared with Sahibinden.com, but there was no price comparisons made with the different players in different countries and, especially, with global players. In addition, the court accepted it as a deficiency that the statement of the Authority that Sahibinden.com will dominate the market in the long-term due to the advantages arising from operating in more than one market is only based on observations, and it is not supported by solid data. Another issue criticized by the court is that the Competi- tion Authority believes that the undertaking, called the “Sahibinden” (meaning, “from the owner”) is more advantageous among consumers than its competitors. The court stated that this situation, which was based on a commercial prediction, and described as a result of the first entry into the said market, was not based on solid data, and was an opinion obtained in line with the opinions of its competitors. The court stated that such a determination could only be put forward through research. Another issue the court determined to be an incomplete review is that Sahibinden.com offers platform services for other services