Turkish Competition Authority publishes Draft Communiqué on De Minimis exemption

On 23 October 2020, the Draft Communiqué on Agreements, Concerted Practices, Acts and Conduct of Association of Undertakings that Do Not Restrict Competition Considerably (“Draft Communiqué”), was published by the Turkish Competition Authority (“Competition Authority”). The Draft Communiqué aims to set out the principles of the de minimis rule, introduced on 24 June 2020, by way of an amendment to Law No. 4054 on the Protection of Competition.

Should the Draft Communiqué enter into force, the Competition Authority will differentiate the agreements restricting competition, based on the market shares of the undertakings which are parties to such agreements. Provided that the market shares of such undertakings fall within certain thresholds, there will be no investigation by the Competition Authority as a rule. However, the Competition Authority reserves the discretion to launch investigations, especially in case of overt and grave violations. The Draft Communiqué defines what constitutes overt and grave violations: price determination, region or customer sharing, and restriction of the supply amount between competitors.

What is about to change?

Pursuant to the de minimis principles set out by the Draft Communiqué, the agreements between the undertakings which would normally be considered as a restriction of competition will be exempted if:

• the market share of each agreeing party is below 15% in the affected market, in the case of non-competing undertakings,
• the aggregate market share of the agreeing parties is below 10% in the affected market, in the case of competing undertakings, (if the relation between the undertakings can be described as neither competing nor non-competing, this threshold applies)
• the aggregate market share of the undertakings is below 10%, in the case of association of undertakings,
• the aggregate market share of competing or non-competing undertakings is below 5%, in the case of parallel networks composed by vertical restrictions covering more than 50% of the affected market.

Exceeding the thresholds listed above do not automatically constitute a “restriction of competition”, as this is determined on a case-by-case basis. In the meantime, there is no guarantee that the agreements that fall within the relevant thresholds will be exempted from investigation. The Competition Authority has the right to investigate all agreements if it deems necessary.

The ongoing investigations will be affected by this change and assessed in accordance with the new thresholds, as the Draft Communiqué will enter into force on the same day it is published in the Official Gazette.

The Draft Communiqué aims to prevent inefficient use of public resources and enable the Competition Authority to focus on issues more important in terms of the effects on the markets and the restriction of competition. Finally, the opinions and suggestions concerning the Draft Communiqué are welcomed by the Competition Authority and can be shared with them until 23 November 2020.

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