Information Exchange in Turkish Competition Law

Exchange of information between competitors falls under the scope of Article 4 of Law No. 4054 on Protection of Competition (Law No. 4054Board) takes into account the nature of the information exchanged and whether it leads to coordinated effects in the market, conducting a case-by-case analysis in the information exchange cases.

The competitive analysis of information exchange depends mainly on the structure of the market, such as the degree of concentration, transparency and stability of the market, and the similarity of the undertakings in it, as well as the nature of the information exchanged. These factors are taken into account in the assessment of whether such information exchange may easily enable the competitors to collude. Markets’ characteristics and, in particular, the market structure is also considered in assessing whether information exchange leads to restrictive effects or is exempted from Article 4 of Law No. 4054. In line with the Guidelines on Horizontal Cooperation Agreements, the Board evaluates the market for (i) transparency; (ii) degree of concentration; (iii) complexity; (iv) stability; (v) similarity of the firms; as well as (vii) other factors. Moreover, the Board takes into account the following criteria to analyse information exchanges: whether the information is (i) strategic; (ii) aggregated or individualised; (iii) historical or related to current or future strategies; (iv) frequent or sporadic; (v) public; and (vi) whether the total share of competitors exchanging information amounts to a majority of the market.

Under Communiqué No. 2021/3 Agreements, Concerted Practices and Decisions and Practices of Associations of Undertakings that do not Significantly Restrict Competition (Communiqué No. 2021/3), information exchange related to future prices, future production or sales amounts are considered as hard-core restrictions, and these kinds of information exchanges are not within the scope of Communiqué No. 2021/3; accordingly, they do not benefit from the “de minimis” principle. Similarly, the Board takes the approach that information exchange related to future prices restricts competition by object without considering its effect on the market.

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