Turkey has updated and amended its block exemption for R&D
agreements. R&D agreements which meet the criteria are exempt
from a general legislative prohibition on agreements, concerted
practices and decisions which limit competition. Major changes
apply to the market threshold, exemption period, joint exploitation
of R&D results, as well as agreement clauses which disqualify
R&D agreements from accessing the block exemption. The updated
R&D block exemption represents a more compatible regulatory
structure with EU standards than previously existed in Turkey.
The Communiqué on Block Exemption for Research and
Development Agreements (Communiqué No: 2016/5)
("Communiqué") was published in
Official Gazette number 29655 on 16 March 2016, entering into
effect on the same date.
Significant changes introduced by the Communiqué
The definition of R&D studies has
expanded. Previously, specialization in research, development,
production or distribution was required for a R&D study to
benefit from the block exemption. The Communiqué now states
that specialisation in the context of research and development or
exploitation is enough.
A new definition for paid R&D is
introduced and these activities are included in the block
exemption's scope. Accordingly, paid R&D refers to R&D
which is carried out by one party, but financed by another.
An agreement can benefit from the
block exemption if it involves the joint use of results and meets
market share thresholds. The Communiqué extends the scope of
this concept by changing "joint use of results" to become
A single market share threshold of
40% now applies, whether an R&D agreement relates to:
One of the parties.
An undertaking controlled by
A third undertaking appointed by
If the parties are not competing
undertakings in the same market, the market share threshold
assessment will not apply to their R&D agreement.
Parties are prohibited from using
technical information and R&D results independently of each
other, if the agreement only addresses R&D. The
Communiqué now excludes confidential business information
and undisclosed information from the scope of the prohibition.
An exemption period applies if the
R&D results will be jointly used, beginning on the date the
product is first launched in Turkey. The Communiqué
increases the exemption period from five to seven years.
Agreements cannot benefit from the
block exemption if they involve joint determination of the
product's sale amount, or limitations on a party independently
determining the sale amount. An exception is introduced to the
effect that this prohibition will not apply if the R&D
agreement involves joint exploitation of the results.
Agreements which included certain
obligations could not benefit from the block exemption. The block
exemption is not applicable to, among others, the following
An obligation not to challenge the
validity of intellectual property rights about and/or related to
R&D results after completion of R&D or termination of the
An obligation not to grant licenses
to third parties to manufacture the contract products, or to apply
the contract technologies if the agreement does not provide for the
joint exploitation of the results or the joint exploitation of the
If there is no joint exploitation clause, or in practice there is
no de factor exploitation by the parties, there can be no
restriction on third party licensing under the R&D
Provision for assessing and applying
the market share threshold are introduced, similar to the Block
Exemption Communiqué on Vertical Agreements
(Communiqué No. 2002/2)
Agreements signed before 16 March 2016 receive until 15 April
2016 to meet the Communiqué's revised conditions and
benefit from the block exemption.
The Communiqué abolishes the existing Block Exemption for
Research and Development Agreements (Communiqué No: 2003/2),
published in Official Gazette number 25212 on 27 August 2003.
Please see this link for the full text of the
Communiqué (only available in Turkish).
Information first published in the MA | Gazette, a fortnightly legal update newsletter
produced by Moroğlu Arseven.
The content of this article is intended to provide a general
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