Horizontal Cooperation Agreements in Turkey

Horizontal agreements are regulated under Article 4 of Law No. 4054 on the Protection of Competition (Law No. 4054), which prohibits all agreements between undertakings, decisions by associations of undertakings and concerted practices that have (or may have) as their object or effect the prevention, restriction or distortion of competition within a Turkish product or services market or a part thereof. Article 4 of Law No. 4054 provides a non-exhaustive list of conducts that are deemed as agreements, concerted practices and/or decisions restricting competition. The Guidelines on Horizontal Cooperation Agreements (Horizontal Guidelines) confirm that a case-by-case analysis is necessary in each instance of horizontal cooperation, which depends on the dynamics of the relevant market as well as the characteristics of the parties involved in the horizontal cooperation (mostly, the parties’ respective market powers).

In assessing horizontal cooperation agreements, the first step is the determination of whether the cooperation is subject to Article 4 of Law No. 4054, i.e., whether the horizontal agreement leads to restriction of competition by object and/or effect. Pursuant to Communiqué No. 2021/3 on Agreements, Concerted Practices and Decisions and Practices of Associations of Undertakings that do not Significantly Restrict Competition, agreements between competitors with a combined market share of less than 10% and those between non-competitors whose aggregate market share does not exceed 15% can benefit from the safe harbour, except in cases of hard-core restrictions (such as price-fixing, territory or customer sharing and restriction of supply).  The second step involves conducting an exemption assessment, i.e., the determination on whether the horizontal agreement benefits from a block exemption or meets the cumulative conditions for individual exemption under Article 5 of Law No. 4054. If an agreement does not meet the requirements and cannot benefit from the protective cloak of the block exemption, the relevant parties are entitled to make a self-assessment to check whether their agreement fulfils the conditions of the individual exemption, or to apply to the Turkish Competition Authority, as set out under Article 5 of Law No. 4054. Thus, if an arrangement cannot benefit from a block exemption, but satisfies the two positive and two negative conditions in Article 5, it can benefit from an individual exemption.

For more information on horizontal cooperation agreements in Turkey, please feel free to reach out to ELIG Gurkaynak at +90 212 327 1724 or through gonenc.gurkaynak@elig.com.