Legal AlertThe Competition Authority Has Published the Draft Communiqué on Parallel Exceptions to the “De Minimis” Rule!

18 November 2020

The Competition Authority (“Authority”) presented the Draft Communiqué on Agreements, Concerted Practices and Decisions and Practices of Associations of Undertakings Which are Considered Not to Appreciably Restrict Competition (“Draft Communiqué“) to the public on its official website on 23.10.2020, in pursuant of the Competition Board (“Board”) Decision dated 22.10.2020 and numbered 20-47/653.

The exceptional regulation, which is the subject of the Draft Communiqué, is one of the important amendments introduced to the Law no. 4054 on the Protection of Competition (“Law”). This amendment regulates a parallel exception to the de minimis rule that is regulated in the European Union legislation, which allows Authority resources to be used to investigate more serious violations rather than competition law violations that do not restrict competition significantly. Accordingly, it is aimed to regulate with the Draft Communiqué prepared by the Board in accordance with paragraph 2 of Article 41 of the Law, the procedures and principles regarding the agreements, concerted actions and exceptional situations that allow the decisions and actions of the associations of undertakings which do not significantly restrict competition in the market not to be included in the scope of investigation.

In the Draft Communiqué, it has been clarified under which conditions it can be benefited from the exception regulated in parallel with the de minimis rule.

In accordance with the Draft Communiqué, within the scope of exceptional regulations subject to market share thresholds, it has been determined that,

  • In agreements made between competing enterprises, if the total market share of the parties to the agreement does not exceed 10% in any of the relevant markets affected by the agreement, and
  • In agreements made between non-competing enterprises, if the market share of each of the contracting parties does not exceed 15% in any of the relevant markets affected by the agreement,

then the relevant agreements will not restrict competition significantly and therefore may not be made subject to investigation by the Board.

In addition to this, the Board if deems necessary, may make the relevant agreements or decisions subject to investigation even in the cases where such thresholds are not exceeded.

The total market shares of the economic units included in the Communiqué on Mergers and Acquisitions Requiring Approval of the Competition Board numbered 2010/4 will be taken as basis in determining the market shares included in the Draft Communiqué.

Within the scope of the Draft Communiqué, a clear and severe violation is defined as the price determination between competitors, sharing of regions or customers and restriction of supply; and it will not be possible to benefit from exceptions parallel to the de minimis rule in cases of clear and severe violations.

The Draft Communiqué will apply to the preliminary surveys and investigations that are ongoing as of its effective date.

It is possible to submit opinions, suggestions and evaluations regarding the Draft Communiqué which is presented to the public opinion by the Competition Authority, until 23.11.2020.

You may reach the Turkish version of the Draft Communiqué and the relevant announcement via the link below:

https://www.rekabet.gov.tr/tr/Guncel/rekabeti-kayda-deger-olcude-kisitlamadig-17f5447afe14eb11812100505694b4c6