Joint Commercialisation Agreements in Turkish Competition Law

Commercialisation agreements fall within the scope of Article 4 of the Law No 4054 on the Protection of Competition (Law No. 4054). The Guidelines on Horizontal Cooperation Agreements (Guidelines) set out the principles to be considered in the assessment of commercialization agreements within the framework of Article 4 and Article 5 of Law No. 4054. Commercialisation agreements may involve cooperation between competitors with regard to the sales, distribution or promotion of substitute products. Agreements of this type can take widely varying forms, depending on the commercialisation functions covered by the cooperation. Therefore, such agreements may lead to a joint determination of all commercial aspects related to the sale of the product, including the price, and may also take a more limited form, in which the agreement would only concern/cover a specific commercialisation function, such as distribution, after-sales services, or advertising.

Commercialisation agreements are capable of leading to restrictions on competition in several different ways. For instance, commercialisation agreements may lead to price-fixing or cause supply restriction through the determination of production volumes or result in the allocation of markets or customers. Moreover, commercialisation agreements could also result in collusive outcomes by leading to an exchange of competitively sensitive information related to subjects falling within or outside the scope of the cooperation, as well as by leading to a commonality of costs. Based on the foregoing considerations, the Guidelines set forth that such agreements are likely to restrict competition by object.

However, commercialisation agreements can also lead to significant efficiencies, especially for smaller producers, stemming from economies of scale and scope and therefore may be subject to the individual exemption if they fulfil the conditions of Article 5 of Law No. 4054.

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