The Turkish competition law regime features two forms of exemption: block exemptions and individual exemptions. Through generally-applicable communiqués, the Turkish Competition Board (the “Board”) exempts in block certain types of agreements from the application of Article 4 of Law No. 4054 on the Protection of Competition (the “Competition Law”), which prohibits anti-competitive agreements, concerted practices and decisions. Those agreements/practices/decisions that are covered by the block exemption are automatically protected from the application of Article 4. They do not require a separate notification for individual exemption.
Since 2005, individual exemption applications/notifications are not mandatory. The parties are allowed to engage in self-assessment and to evaluate whether a restrictive agreement that falls under Article 4 meets the conditions of individual exemption. To be eligible for individual exemption, a restrictive agreement/practice/decision must (i) ensure new developments and improvements, or economic or technical development in the production or distribution of goods and in the provision of services, (ii) allow the consumers a fair share of the resulting benefit, (iii) not eliminate competition in a significant part of the relevant market and (iv) not limit competition more than what is compulsory for achieving the goals set out in sub-paragraphs (i) and (ii). This is not an alternative test and all conditions must be met for an individual exemption.
While not mandatory, the parties to a restrictive agreement can also voluntarily submit an application before the Competition Authority for an individual exemption. Doing so would help the parties reach legal certainty in cases where the outcome of the self-assessment is inconclusive or uncertain. The application is made by way of a uniformed notification form, which aims to request a negative clearance and/or individual exemption. “Negative clearance” is written confirmation that the agreement/practice/decision does not violate competition laws, whereas “individual exemption” is confirmation that a restrictive agreement/practice/decision fulfills the all of the above-mentioned conditions. Under normal circumstances, a carefully handled and closely followed-up review process of an individual exemption application would take around 6 months, although the law does not provide for a deadline or an implicit approval mechanism for individual exemption applications.
The Board can grant an individual exemption for an indefinite or a definite period. If it is granted for a definite period, it may or may not be eligible for renewal at the end of that period. The Board can condition the individual exemption upon the parties fulfilling certain structural or behavioral remedies. Individual exemption decisions are retroactive – they take effect from the date on which the notified agreement/practice/decision enters into force. This treatment allows the parties a protective cloak and eliminates the risk of non-compliance during the review process.
Please also see the “individual exemption/negative clearance application form” for further information.