On March 16, 2021, Turkish Competition Authority published two important communiqués. One of the said communiqués regulates the mechanism applicable to the Commitments Offered During Preliminary Investigations and Investigations on Restrictive Agreements, Concerted Practices, Decisions and Abuse of Dominance, and the other one stipulates the principles in relation to the criteria to be applied to the agreements, concerted practices, and actions and decisions of associations of undertakings which do not significantly restrict competition, to be exempted from investigation, except for clear and hardcore violations.
I. Commitment Mechanism During Preliminary Investigations and Investigations on Restrictive Agreements, Concerted Practices, Decisions and Abuse of Dominance
As per the Communiqué on Commitments Offered During Preliminary Investigations and Investigations on Restrictive Agreements, Concerted Practices, Decisions and Abuse of Dominance (“Communiqué”) during a preliminary or fullfledged investigation, parties may request the cessation of the investigation initiated against them by way of proposing a commitment. Such request for commitment should be submitted to the Turkish Competition Authority (“TCA”) within three months following the receipt of the investigation notice. Following the submission of the commitment request, the Competition Board (“Board”) will carry out an assessment by taking into consideration whether the concerned agreement, decision or practice has the nature of clear and hardcore violation, and accordingly decide either to initiate discussion of the commitment or to reject the request for submission of commitment and to end the commitment process.
As per the Communiqué, commitment mechanism cannot be implemented in case of clear and hardcore violations, such as price-fixing, region or customer allocation or restriction of supply or re-sale price maintenance.
Depending on the nature of the competition concerns, structural and behavioral commitments may individually or collectively be submitted. Content of the commitment text is set forth under the Communiqué in detail.
Should the Board decide that competition concerns may be eliminated by the proposed commitment, it, during at any phase of the commitment process, may decide to make the commitment binding on the parties and not to open an investigation or to end the pending investigation.
Compliance of the parties to the commitment will be monitored by the Board by way of submission of reports by the parties or appointment of third parties for the purpose of auditing.
Once the commitment is fulfilled by the parties, the parties should evidence such with the Board and the Board will subsequently adopt a decision in this regard.
II. Communiqué on Agreements, Concerted Practices, and Actions and Decisions of Associations of Undertakings Which Do Not Significantly Restrict Competition
As per the referred Communiqué, the Board, except for clear and hardcore violations, may choose not to initiate an investigation in respect of the agreements, concerted practices, and actions and decisions of associations of undertakings which do not significantly restrict competition. Cases which would constitute clear and hardcore violations are defined in the Communiqué.
In this regard, except for clear and hardcore violations, the Board may choose not to initiate investigation for the agreements where the market share of the parties to the agreement in question does not exceed 10% for competing parties and 15% for non-competing parties, in any one of the markets affected by the agreement, by determining that such agreements do not significantly restrict competition in the market.
In addition, the Communiqué provides different thresholds for members of associations of undertakings and parallel networks. That being noted, market shares of the parties to the agreement or members of the associations of undertakings which exceed the thresholds stipulated in the Communiqué will not directly lead to the conclusion that the agreement or the decision restricts or significantly restricts competition.
Pursuant to the relevant Communiqué, market share will be calculated based on the sales value in the market or the purchase value, where appropriate.
Lastly, if an investigation is initiated due to reasons such as inability to fully determine the market shares of the parties in the relevant markets, the Board may then end the investigation if it is determined during the investigation that the market shares of the parties do not exceed the above-mentioned thresholds.
