The Turkish Competition Authority (“TCA”) investigated whether OİB and ZES violated Article 4 and/or Article 6 of Act No. 4054 due to the vertical relationship between Otoyol İşletme ve Bakım AŞ (OİB), the operator of the highway service facilities named OKSİJEN, and ZES Dijital Ticaret AŞ (ZES), the operator of the electric vehicle charging stations, in terms of the activity of providing charging services to electric vehicles on the İstanbul-İzmir Highway and whether this situation led to contractual exclusivity.
Within the scope of the investigation, when the TCA examined the charging units on the O-5 highway within the scope of the activity of providing charging services to electric vehicles, it was determined that with the contract signed between OİB and ZES in 2018, ZES branded AC charging units were used in OKSİJENs without the need for a separate transformer and additional transmission line, but over time, AC charging units were replaced by DC charging units. Accordingly, the relevant product market was defined as “electric vehicle charging service”, which includes both AC fast charging service and DC high speed charging service.
In the relevant geographical market assessment, it has been concluded that it is necessary to consider how users who pay a fee to enter O-5 can receive electric vehicle charging service and resting facility service to meet their personal needs. It has been stated that users who enter the O-5 should exit the O-5 if they want to meet their various needs other than the OKSİJENs located every 27 km and their substitutes. In such a case, it was stated that re-entry to O-5 would be required and users would face both the cost of the highway entrance-exit fee and the transaction cost due to the loss of time at the entrance-exit. For this reason, it has been assessed that users entering O-5 are exposed to the lock-in effect related to the OKSİJENs located on O-5. Therefore, the relevant geographic market was defined as “O-5 İzmir-İstanbul Highway”.
It was stated that OİB granted ZES the right of exclusivity for the period 01.06.2018-01.06.2023 for the installation and operation of electric vehicle charging stations at OKSİJENs. Through the Addendum signed between OİB and ZES on 02.06.2022, it has been made possible for TESLA to operate in the OKSİJENs on the O-5 Highway where ZES operates exclusively. In this context, it was stated that the five-year exclusivity granted to ZES by the OİB was terminated by the OİB, approximately one year before its expiration. In the following period, contracts were signed between OİB and other undertakings for the installation and operation of charging stations at OKSİJENs, and it was stated that there were 14 undertakings with whom contracts were signed as of 25.11.2024.
The TCA stated that OİB, as the provider, has a legal monopoly position in terms of the operation of O-5 and the provision of hosting services, and that the market-foreclosure effect in the said exclusivity relationship is high since it is not possible for competing buyers to access the hosting services on O-5 through vertical integration or an alternative provider. The exclusivity relationship between OİB and ZES was evaluated in terms of group exemption. Within the framework of the requirement of Communiqué No. 2002/2 that the market share of the buyer in the market where the buyer purchases the goods or services subject to the agreement should not exceed 30% in order for a vertical agreement that stipulates the obligation to provide to a single buyer to benefit from the group exemption, it is stated that the Installation Agreement concluded between the parties cannot benefit from Communiqué No. 2002/2, considering that the market share of ZES, which is the exclusive buyer in the period 01.06.2018-02.06.2022, is more than 30% in the relevant market. In addition, since the Installation Agreement concluded between OİB and ZES provides exclusivity to ZES for approximately four years, and therefore completely forecloses the market to ZES's competitors during this period, it is not possible to grant an exemption to the Installation Agreement under Article 5 of Act No. 4054.
For all these reasons, the TCA decided that OİB and ZES violated Article 4 of the Act No. 4054 with the contractual exclusivity practice, and as a result of the 25% reduction of the administrative fines within the scope of the settlement procedure, an administrative fine amounting to 1,707,963.45 TL for ZES and 6,025,703.83 TL for OİB over their gross revenues for 2023.
(TCA – 27.12.2024, 2024-2-005 & 09.01.2025, 2024-2-005)
NAZALI TAX & LEGAL