Attorney-at-Law, Ankara Bar
LL.M. in Public Law
The Turkish Competition Board’s Malatya Ready-Mixed Concrete decision dated 9 May 2025 and numbered 25-18/433-202 is noteworthy not only for its outcome, but also for the evidentiary and defensive framework it adopts. In this decision, the Board identified the ready-mixed concrete, aggregate and labour markets as separate relevant markets, assessed the existence of competition law infringements independently for each market, and imposed separate administrative fines as a result of those assessments.
Despite the fact that the analyses were conducted across different markets, the Board’s reasoning reveals a common, coherent and systematic methodology with respect to the proof of infringement and the assessment of defences. This methodology contains significant findings that require a re-examination of defence strategies in competition law practice, particularly in relation to the legal significance of contacts between competitors, the nature of competitively sensitive information, proof based on logical inferences, the role of the simultaneous exchange of information, and the application of the publicly distance standard.
Against this background, this study aims to analyse the Competition Board’s methodology as reflected in the Malatya Ready-Mixed Concrete decision, focusing on how contacts between competitors are assessed, under which conditions an infringement may be established through logical inferences, and how the principle of the more lenient law is applied at the sanctioning stage, throughout the process extending from the proof of infringement to the determination of administrative fines.
I. The Legal Nature of Contacts Between Competitors:
Not “Innocent”, but an Inherently High-Risk Area
The Malatya Ready-Mixed Concrete decision once again demonstrates that meetings and communications between competing undertakings are, by their very nature, inherently high-risk from a competition law perspective. The Board notes that the evidence obtained during the investigation indicates that ready-mixed concrete producers/distributors operating in Malatya frequently convened meetings with their competitors. However, the Board structures its assessment around the following fundamental distinction:
This approach does not suggest that meetings between competitors are insignificant per se. On the contrary, it places the content of such meetings at the very centre of the evidentiary analysis.
II. The Nature and Level of Detail of Competitively Sensitive Information:
The Focal Point of Proof
A decisive element in the Board’s assessment is that the information found to have been exchanged during, or in connection with, the meetings consisted of competitively sensitive data, such as wages/bonuses, prices and customer information, and that this data was presented with a high level of detail.
Particularly with respect to the labour market, the Board emphasises that the wage and bonus studies were:
The Board concludes that a dataset of this nature cannot reasonably be explained as having been generated without the involvement of competing undertakings and without simultaneous interaction. At this point, proof is grounded not merely in the existence of documents, but in the structure of the data and its plausibility.
The Board’s analytical axis is clear: the higher the level of detail of the information, the less plausible it becomes that such data could have been generated independently of competitors, thereby reinforcing the inference of an agreement or concerted practice.
III. Proof Through Logical Inferences and the “Ordinary Course of Life” Approach
One of the most prominent aspects of the Malatya Ready-Mixed Concrete decision is the Competition Board’s use of logical inferences based on the “ordinary course of life”, not merely as a supplementary consideration, but as a constitutive element of proof.
In particular with respect to the labour market, the Board underlines that:
Based on these findings, the Board concludes that the defences lack logical coherence. This approach demonstrates that the reductive defence line of “no direct evidence, therefore no infringement” does not withstand scrutiny in the presence of certain sets of findings in competition law enforcement.
IV. Simultaneous Exchange of Information:
The Ground on Which the Concertation Was Established
The emphasis placed by the Board on simultaneity plays a critical role in its reasoning. The decision refers to internal communications reflecting real-time confirmations of wage information during the meetings, as well as expressions such as “do not say much”, “you”, “they”, and “let them speak”, indicating that the collection and sharing of information were actively guided within the context of the meetings. In addition, certain undertakings were found to have internally verified their wage levels in real time and disclosed them to other parties.
These findings give rise to two simultaneous conclusions:
V. Indirect Proof of Participation and the Assessment of Defences
The decision further demonstrates that participation in a meeting may be assessed not solely on the basis of physical presence, but also on the scope and content of the data set. By jointly evaluating the inclusion of detailed data relating to specific undertakings, the fact that such data was generated simultaneously, and the deliberately limited scope of the studies, the Board concludes that the undertakings in question participated in the meetings forming the basis of the concertation.
This approach points to an evidentiary technique based not on proof of physical attendance, but on the structure of the data and the logic underlying its scope.
VI. The Publicly Distance Standard and the Narrow Scope of Defence
The Board recognises that, in cases involving a clearly anti-competitive object, exemption from liability cannot be achieved merely by asserting non-participation. Rather, undertakings must demonstrate an explicit and perceptible opposition to the concertation, in a manner that is observable by other parties (publicly distance).
In this context, factors such as:
are insufficient, on their own, to establish that an undertaking was not a party to the infringement.
The Board’s assessment of the dynamic nature of cartels further narrows the scope of defence: varying degrees of activity, non-attendance at all meetings, or non-compliance with every decision are regarded as inherent characteristics of cartel behaviour. Accordingly, defences based on “non-alignment” are, in many cases, interpreted not as excluding the infringement, but as confirming its existence. This approach underscores that, particularly in cases involving competitor contacts, passivity is legally meaningless, whereas clear and traceable dissociation is decisive.
VII. Multi-Market Structure: Separate Infringements, Separate Sanctions
The Malatya Ready-Mixed Concrete decision clearly demonstrates that multiple relevant markets may be defined within a single investigation, and that independent infringement and sanction assessments may be carried out for each market. The Board examined the ready-mixed concrete, aggregate and labour markets separately, analysed the constituent elements of the infringement independently for each market, and established separate sanction items in the operative part of the decision.
This structure is significant in that it illustrates how a single course of conduct may lead to multi-layered and severe consequences across different markets under competition law.
VIII. From Proof to Sanctioning: Application of the More Lenient Law Principle
In the sanctioning phase, the Competition Board explicitly demonstrates its application of the principle of the more lenient law. When transitioning to the assessment of administrative fines, the Board states:
“For investigations that were ongoing as of the effective date of the New Regulation on Administrative Monetary Fines, it was considered necessary, pursuant to the principle of the more lenient law, to apply the provisions that are more favourable to the undertakings under investigation. Accordingly, for the purposes of this investigation, the New Regulation and the Former Regulation were assessed as a whole, and the provisions favourable to the undertakings were applied.”
This statement shows that, having established the existence of the infringement, the Board did not disregard the principles of proportionality, legal certainty and foreseeability at the sanctioning stage. Thus, the transition from proof to penalty is constructed not in a purely mechanical manner, but through a normative, principle-based assessment.
Conclusion: The Framework Revealed by the Decision
The Malatya Ready-Mixed Concrete decision clearly demonstrates that the Competition Board’s approach to proof is grounded in the inherently risky nature of competitor contacts, the nature and level of detail of competitively sensitive information, simultaneous exchange of information, and logical inferences.
This framework shows that defence strategies in competition law cannot be reduced to the mere absence of direct evidence or debates over actual implementation. Instead, they must be constructed through a more comprehensive analysis focusing on the content of contacts and the logical plausibility of information exchanges. At the same time, the framework highlights that, particularly in sectors characterised by competitor interaction, undertakings are required to re-evaluate their internal communications and meeting practices through a competition law lens.
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