The Competition Authority’s (“Authority“) Communiqué No. 2021/3 on Agreements, Concerted Practices, Acts and Conducts of Association of Undertakings that Do Not Considerably Restrict Competition (“Communiqué“) was published in the Official Gazette dated March 16, 2021 and No. 31425 and entered into force on the same day. The Communiqué aims to establish the de minimis mechanism, which allows public funds to be directed towards investigating more important violations instead of violations that do not significantly restrict competition. Previously, the draft communiqué (“Draft Communiqué“) was published on the Authority’s website on October 23, 2020. You may find our legal alert on the Draft Communiqué here. Compared to the Draft Communiqué, the Communiqué brings both critical and cosmetic changes.
What Do the Developments Mean?
The Communiqué regulates the conditions under which the Authority may decide not to pursue investigations on the agreements, concerted practices, decisions and actions of associations of undertakings that do not significantly restrict competition in the market. The procedures and principles specified in the Communiqué include:
The Communiqué expands the scope of the clear and hardcore violations, which is one of the significant deviations from the Draft Communiqué where clear and hardcore violations were defined as price fixing, region or customer allocation and restrictions on supply, without further categorization.
(i) if the aggregate market share held by the parties to the agreement does not exceed 10% on any of the relevant markets affected by the agreement where the agreement is made between competing undertakings; and
(ii) if the market share held by each of the parties to the agreement does not exceed 15% on any of the relevant markets affected by the agreement, if the agreement is made between non-competing undertakings.
The Communiqué also provides that if it is not possible to classify the agreement as an agreement between competing undertakings or between non-competing parties, or if the relevant decision belongs to an association of undertakings, the aggregate market share of the parties/members of the association of undertakings should not exceed 10% in any of the relevant markets affected by the agreement.
The Communiqué has a specific provision for vertical restrictions. Accordingly, the aggregate market share of competing or non-competing undertakings should be below 5% to benefit from the de minimis mechanism if the parallel networks formed by vertical restrictions cover more than 50% of the relevant market.
Last but not least, the Communiqué indicates that it will not be deemed to be an appreciable restriction on competition if the market shares of the contracting parties or members of the association of undertakings are above the specified thresholds by a maximum of 2% during the agreement or the decision period for two consecutive calendar years.
The Communiqué, which recently entered into force, regulates the procedures and principles regarding the implementation of the de minimis mechanism. This mechanism was added to the Law No. 4054 on the Protection of Competition through the newly enacted Law No. 7246, which entered into force on June 24, 2020. The Communiqué bears significant similarities to the European Union’s Commission Notice on agreements of minor importance which do not appreciably restrict competition under Article 101(1) of the Treaty on the Functioning of the European Union (De Minimis Notice), particularly on the framework and threshold market shares. This marks yet another effort to align Turkish competition law with the EU law. It is expected that the Communiqué will enable the Authority to allocate public resources more effectively for competition law enforcement.
Please stay up to date with further developments through the Esin Attorney Partnership Coronavirus Helpdesk.