The Communiqué on Agreements, Concerted Actions and Decisions and Actions of Association of Undertakings that do not Considerably Restrict Competition (Communiqué No: 2021/3) (“Communiqué“) was published in the Official Gazette dated March 16, 2021 and numbered 31425. Within the scope of the Communiqué, the procedures and principles applicable for the determination of agreements, concerted actions and decisions and actions of association of undertakings that do not considerably restrict competition in the market and which may not be subject to an investigation to be pursued by the Competition Authority, are regulated.

“Clear and severe” violations of competition as defined in detail under the Communiqué will not be considered within the scope of the Communiqué and therefore, shall not be considered as one of the cases where the Competition Authority may decide not to initiate an investigation.

Accordingly, with the exemption of clear and severe violations;

  • For agreements executed between competing undertakings, in case the total of the market shares of the contracting parties (in terms of the decisions of associations of undertakings, members of the association) does not exceed 10% in any of the relevant markets affected by the agreement,
  • For agreements executed between non-competitors, if the market share of each of the contracting parties does not exceed 15% in any of the relevant markets affected by the agreement,

the relevant agreement shall be deemed to be not considerably restricting the competition in the market. In the event that an agreement executed within this scope cannot be classified as any of the above, the relevant market share threshold will be applied as 10%.

In case of parallel networks formed by vertical limitations of similar nature that involve more than 50% of the relevant market, the threshold for the total market share will be applied as 5% for agreements and concerted actions between both competing and non-competing enterprises as well as the decisions of association of undertakings, subject to certain exceptions set out in the Communiqué.

Nevertheless, a situation where the market shares of parties to an agreement or concerted action or members of an association of undertakings in the affected relevant market exceed the thresholds outlined above, will not absolutely mean that the relevant agreement, concerted action or decision of association of undertakings restricts competition in the market. Agreements, concerted actions or decisions of association of undertakings which are deemed as not considerably restricting competition in the market within the scope of the Communiqué, may not be subjected to an investigation by the Competition Authority. Although an investigation may be initiated for reasons such as the inability to fully determine the market shares in the relevant markets; the investigation may be terminated in case the relevant market share to be determined during the investigation process does not exceed the thresholds.

The Communiqué will also apply for the preliminary investigations and investigations pending as at the date of its enforcement.