Communique on Agreements, Concerted Practices, and Decisions of Associations of Undertakings that Do Not Appreciably Restrict Competition numbered 2021/3 (“Communique”) entered into force after being published in the Official Gazette dated 16.03.2021 and numbered 31425. With the amendment made to the Law No. 4054 on Protection of Competition (“Law”) on June 24, 2020, De Minimis Principle was introduced to Turkish Competition Law. According to the De Minimis Principle, Turkish Competition Authority (“Authority”) may not launch investigations into agreements, concerted practices, and the decisions of associations of undertakings that do not appreciably restrict competition and do not fall within the scope of evident and severe violations. With the exception of evident and severe violations, the Communiqué aims to set forth the principles and procedures regarding the criteria on which agreements, concerted actions and decisions and actions of the association of undertakings that do not appreciably restrict competition in the market will be determined and under which circumstances such actions may not be subject to investigation. The Communiqué shall also be applied to ongoing preliminary investigations and investigations as of the date of entry into force. The procedures and principles regulated by the Communiqué are as follows:
1- Agreements and Decisions That Do Not Appreciably Restrict Competition
Except for evident and severe violations, the agreement, concerted action and decisions and actions of the association of undertakings do not appreciably restrict competition in the following cases:
- In cases of horizontal agreements among competitors where the combined market share of the undertakings does not exceed ten percent in any market affected by the agreement,
- In cases of vertical agreements among non-competitors where the market share of each undertaking does not exceed fifteen percent in any market affected by the agreement,
- In cases of total market share of members of associations of undertakings does not exceed ten percent in any market affected by the decision.
If the parallel networks formed by vertical restrictions of similar nature cover more than fifty percent of the relevant market, the limits determined shall be applied as five percent in terms of agreements and decisions between both competitors and non-competing undertakings.
Although, the market shares of the parties of the agreement or members of the association of undertakings in the relevant markets affected by the agreement or decision are above the determined thresholds for two consecutive calendar years during the agreement or decision period, De Minimis application may also be applied if these thresholds are not exceeded by more than two percentage points.
In addition, the fact that the market shares of the contracting parties or members of the association of undertakings exceed the above-mentioned thresholds in the relevant markets affected by the agreement or decision does not directly mean that the said agreement or decision restricts or appreciably restricts competition in the market.
2- Investigation
Agreements and decisions that do not appreciably restrict competition in the market may not be subject to investigation by the Authority. In other words, even if the market share thresholds are not exceeded, if the Authority deems necessary, an investigation may be conducted regarding the relevant agreement, decisions, or actions.
3- Calculation and implementation of market share
Market share is calculated on the basis of the sales value in the market or, where appropriate, the purchase value.
If sales or purchase value data are not available, estimates based on other reliable market data, including the amount, may be used to calculate the market shares of the agreement parties and members of the association of undertakings in the relevant markets affected by the agreement or the decision.
Market shares calculated using the previous year’s data for each calendar year in the agreement or decision period shall be taken into account when applying the determined thresholds.
In determining the market shares of the parties of the agreement and the members of the association of undertakings, the total market shares of the economic units included in the Communiqué on Mergers and Acquisitions Requiring Permission from the Competition Board published in the Official Gazette dated 7/10/2010 and numbered 27722 shall be taken as basis.
You may reach the full Turkish version of the Communiqué via the link below:
