On 16 March 2021, the Turkish Competition Authority (the "Authority") issued the Communiqué on Agreements, Concerted Practices and Decisions of Associations of Undertakings Not Appreciably Restricting Competition, numbered 2021/3 (the "2021/3 Communiqué"), which sets out the details of the de minimis principle under Article 41 of the Law on Protection of Competition No. 4054 (the "Law").
As mentioned in our previous article, the Law was significantly amended after 26 years and investigation thresholds were set to create time efficiency and legal certainty for competitors in the market.
As a result, the Authority may decide not to investigate if an infringement does not significantly restrict competition, provided that the threshold to be set by the Authority for certain criteria such as market shares and revenues is not exceeded. In the case of gross infringements such as price fixing, sharing of customers or territories and restriction of supply, the Authority is obliged to conduct investigations.
The specific thresholds and criteria included in Communiqué 2021/3 are in line with the 2014 EU De Minimis Notice.
General provisions on the established investigation thresholds
According to Communiqué 2021/3, the Authority may waive an investigation if an infringement does not significantly restrict competition and does not constitute a case of gross infringement. However, the fulfilment of the following conditions and thresholds does not automatically lead to an exemption from investigation.
The Authority is entitled to officially close an ongoing investigation if it finds that the agreements or decisions under investigation do not significantly restrict competition.
The Authority explains that each case will be assessed individually to determine whether each case of exceeding thresholds or criteria meets the definition of "restriction of competition".
Agreements and decisions that do not substantially restrict competition
According to Communiqué 2021/3, the following agreements do not substantially restrict competition, except in cases of gross infringement:
- Agreements between non-competitors where the market share of each party to the agreement does not exceed 15% in any affected market; or
- In other cases where the combined market shares of a party to the agreement do not exceed 10% in an affected market.
Furthermore, except in the case of gross infringements, the decisions do not significantly restrict competition if the aggregate market share of the members of the association of undertakings does not exceed 10% on any of the relevant markets affected by the decision.
However, for agreements and decisions between competitors and non-competitors covering more than 50% of the market, the following threshold shall apply: 5% for agreements relating to parallel networks formed by vertical restraints.
In line with the EU De Minimis Notice of 2014, the agreements and decisions exceeding the above thresholds will not be considered as significant restrictions of competition if they exceed the thresholds by only 2% in two consecutive calendar years.
How do you calculate market share?
The market share of the companies is calculated on the basis of the sales value and, if applicable, the purchase value. If the sales or purchase values are not available, estimates based on credible market information such as volume values may be used to calculate the market shares.
In addition, the market shares calculated according to the data of the previous calendar year for the agreement or decision period in question shall be taken into account for the application of the above thresholds.
In addition, Article 8 of Communiqué No. 2010/4 "Concerning the Mergers and Acquisitions Requiring the Approval of the Competition Board" will apply when determining the market shares of the companies under investigation.
Note that the provisions of Communiqué 2021/3 apply to those investigations and preliminary investigation that were pending when Communiqué 2021/3 entered into force.
For more information on the application of the new regulations, please contact your regular CMS advisor or the local CMS experts: Dr. Döne Yalçın or Arcan Kemahlı.