The Turkish Competition Board (“Board”) investigated allegations regarding whether pharmaceutical manufacturers and pharmaceutical warehouses maintained prices and sold pharmaceuticals above their value by agreeing among themselves and imposed administrative fines to Gül Ecza Deposu Sanayi ve Ticaret A.Ş. (“Gül Pharmaceutical Warehouse”) and Sonuç Ecza Deposu A.Ş. (“Sonuç Pharmaceutical Warehouse”) with its decision dated 01.07.2021 and numbered 21-33/446-222 (“Decision”). The reasoning of the Decision has been published on the Turkish Competition Authority’s website on 28 February 2022.
Two different breach allegations have been investigated in the Decision as to whether pharmaceutical manufacturers Deva Holding A.Ş. (“Deva”) and Haver Farma İlaç A.Ş. (“Haver”) and distributors Gül Pharmaceutical Warehouse and Sonuç Pharmaceutical Warehouse sold pharmaceuticals to above their value by agreeing among themselves in hospital sales and whether the resale prices of Gül Pharmaceutical Warehouse were maintained by Gül Pharmaceutical Warehouse.
The Board, regarding whether pharmaceutical manufacturers Deva and Haver and distributors Gül Pharmaceutical Warehouse and Sonuç Pharmaceutical Warehouse sold pharmaceuticals to above their value by agreeing among themselves in hospital sales, determined that no breach was committed by Deva and Haber as no information or document has been obtained about these undertakings. On the other hand; the Board concluded by basing upon a WhatsApp conversation between that Law No. 4054 on Protection of Competition has been breached since price, sales and marketing conditions of the pharmaceutical sales made to a private hospital were jointly determined by the parties. Importantly, no other information or document except the mentioned WhatsApp conversation was shown as evidence of the breach.
In terms of the allegation regarding maintenance of resale prices of Sonuç Pharmaceutical Warehouse by Gül Pharmaceutical Warehouse, statements included in the relevant conversations have been evaluated as price recommendations since no sanctions or conditions are set forth and maintenance or control of the resale prices applied to the consumers to whom Gül Pharmaceutical Warehouse does not make sales is not economically rational. Therefore, it has been concluded that a resale price maintenance breach has not been committed.
Another evaluation mentioned in the Decision and which closely concerns the stakeholders of the sector is related to the trial balance sharing between the undertakings. In the Decision, it has been stated that sharing of detailed trial balances which include information about rivals such as sales amounts, details and turnover information, sales numbers, capacity, marketing budget, carried risks, investments, research and developments costs may constitute a breach of competition. However, any breach regarding the trial balance sharing has not been attributed by considering that Gül Pharmaceutical Warehouse and Sonuç Pharmaceutical Warehouse were making sales to different channels (procurement channel and pharmacy channel) on the dates when they share trial balances and therefore they were not rivals.
As a result of the investigation, Gül Pharmaceutical Warehouse and Sonuç Pharmaceutical have been imposed fines of around 4.6 million Turkish Liras and 1.4 million Turkish Liras respectively for jointly determining price, sales and marketing conditions of the sales to a private hospital; while it has been decided that Deva and Haver have not committed any breach.