The Communiqué on Amendments to the Communiqué on Block Exemption on Vertical Agreements (“Communiqué”) was published in the Official Gazette dated 5 November 2021 and numbered 31650. With the Communiqué, the second and third paragraphs of Article 2 and article 6/A in the Block Exemption Communiqué on Vertical Agreements numbered 2002/2 (“Communiqué numbered 2002/2”) have been amended and Provisional Article 3 has been added. The Communiqué entered into force on the date of its publication.
With the amendment made in Article 2 subparagraphs 2 and 3 of the of the Communique numbered 2002/2 pursuant to Article 1 of the Communique, the exemption provided by the Communiqué will now be applied on the condition that the market share of the supplier in the relevant market in which the supplier provides the goods and services subject to the vertical agreement does not exceed 30%. In vertical agreements that include the obligation to supply to a single buyer, the exemption will also be applied provided that the buyer’s share in the relevant market from which the goods and services subject to the vertical agreement does not exceed 30%.
The following rules will be applied in the implementation of the 30% market share principle specified in the Communiqué:
a) Market share is calculated using the previous year’s data.
b) Market share includes all goods and services provided for sale to affiliated distributors.
c) If the market share is initially not more than 30% and then increases above the threshold, not exceeding 35%, the exemption will continue to be valid for the next two years following the year in which the market share threshold was first exceeded.
d) If the market share is initially not more than 30% and then increases above 35%, the exemption will continue to be valid throughout the year following the year in which the market share threshold was first exceeded.
e) The rights provided by subparagraphs (c) and (d) cannot be combined in such a way that the period exceeds two calendar years.
With the added Provisional Article 3, agreements that benefit from the exemption provided by the Communiqué numbered 2002/2 on the effective date, but fall outside the scope stipulated by the amendment made in Article 2 of the Communiqué, within 6 months from the effective date of the Communiqué, compliance with the conditions set out in Article 5 of the Protection of Competition Law numbered 4054 (“Law”) must be ensured.
The conditions stipulated under Article 5 of the Law are as follows.
a) Ensuring new developments and improvements or economic or technical development in the production or distribution of goods and the provision of services,
b) The consumer benefiting from such,
c) Competition ceasing in a significant part of the relevant market,
d) Not limiting the competition more than is necessary to achieve the objectives in (a) and (b).
Also, pursuant to the Communiqué, within the 6- month period, Article 4 of the Law regarding the prohibition of “Agreements between undertakings, concerted practices and associations of undertakings with the aim of preventing, distorting or restricting competition directly or indirectly in a particular good or service market, or which have or may cause such an effect, to such decisions and actions” shall not apply.
In summary, the market share threshold in the Communique numbered 2002/2 has been lowered to 30% and the rules to be applied in the implementation of the 30% market share threshold have been determined.
You can access the full Turkish text of the Communiqué via the link below.
https://www.resmigazete.gov.tr/eskiler/2021/11/20211105-12.htm
