Sales Bans in Turkish Competition Law

Pursuant to Article 4 of the Block Exemption Communiqué No. 2002/2 on Vertical Agreements (Communiqué No. 2002/2), restrictions requiring the buyer not to sell the products or services in certain geographic territories or to certain customers may be considered as a violation by object of Article 4 of Law No. 4054 on the Protection of Competition (Law No. 4054). There are, however, a number of exceptions to this rule. Indeed, Article 4(b)(1) of Communiqué No. 2002/2 allows the supplier to prevent the buyer from active sales of contracted products or services to an exclusive territory or customers allocated to a supplier or another buyer, provided that this restriction does not cover any resale by the buyer’s customer. While Communiqué No. 2002/2 grants block exemption to these practices, provisions extending beyond what is permissible under an appropriately defined exclusive distribution system, such as restriction of passive sales, which consist of restriction of resale of a product or a service by the buyer’s customer, cannot benefit from the block exemption and may exclude the vertical agreement from the application of Communiqué No. 2002/2.

“Passive sales” can be defined as sales that do not include an active effort by the distributor, even if the buyer carries out deliveries or advertises the product to a reasonable degree. Advertisements or promotions of a general nature in the media through online channels or similar methods are generally classified as passive sales. Restrictions on passive sales should be categorically avoided, since the restriction of passive sales is evaluated as a hard-core restriction and condemned by the Turkish Competition Board in a variety of decisions (e.g., BSH (16.12.2021; 21-61/859-423), Hayal Seramik (26.12.2019; 19-46/772-333), Çaykur II (14.11.2019; 19-40/645-272), Mates-Atek (04.01.2018; 18-01/1-1), Altınbaş Petrol (06.11.2012; 12-54/1517-535), Doğuş Otomotiv (28.01.2010; 10-10/90-40)).

For more information on sales bans in Turkish antitrust law, please feel free to reach out to ELIG Gurkaynak at +90 212 327 1724 or through gonenc.gurkaynak@elig.com.