Information Exchanges with Competitors

Contact with and exchanges of information between competitors—through trade associations, co-operative bodies or otherwise—are commonplace in many industries and can often be regarded as beneficial complements to a competitive market. These contacts would not raise competition concerns in cases, for example, where competitors meet to discuss appropriate actions to solve the relevant industry's common problems (such as discussions on legislative or regulatory texts, or government actions relating to that industry).

That said, there are obvious risks to the competitive process where such meetings or contacts with competitors provide a vehicle for collusive conduct. Exchange of commercially-sensitive information and meetings having as their purpose the fixing of price or sale volume targets are common examples of these risks.

The Turkish Competition Board's established practice is to adopt a sensitive approach to such meetings or contact. The Board often uses such contact to prove the existence of an agreement in restraint of trade or, more likely, of a concerted practice.

The Turkish competition law regime has clear rules governing exchanges of information between competitors. There is a significant number of precedents where the Turkish Competition Board discussed the question whether the exchanges of information between competitors infringed Article 4 of Law No. 4054 (Corporate Loans (17-39/636-276;28.11.2017),Göltas (16-02/44-14, 14.01.2016), Automotive manufacturers and distributors (11-24/464-139;18.04.2011), Cement Cartel (02-06/51-24, 01.02.2002); Association of Manufacturers of Fertilizer (02-07/57-26, 08.02.2002); Coal Cartel (03-60/733-343, 11.09.2003); Ceramic Cartel (04-16/123-26, 24.02.2004), etc.).

The following general principles and rules are inferred from the jurisprudence:

  • Contact with competitors or dissemination of information between competitors—through a trade association or otherwise—may sometimes be unobjectionable, as noted above.
  • On the other hand, such contact is often seen as a tool to achieve co-ordination of competitors' commercial strategies.
  • This would be the case particularly when competitors exchange commercially-sensitive data.
  • The question of whether the exchange of information between competitors infringes Article 4 of Law No 4054 depends heavily on whether or not that information would normally be regarded as a business secret.
  • Examples of business secrets include prices, output and sales, stocks, costs, future commercial projects, etc.
  • The Turkish Competition Board may not object to the exchange between competitors of statistical information giving an aggregate picture of the output and sales of the relevant industry without identifying individual undertakings, although the risks cannot be excluded altogether.
  • Similarly, there may be no objection under Article 4 if information as to the production and sales is made available to competitors, provided the information is sufficiently historic that it no longer has any real impact on future behavior, although the risks cannot be excluded altogether.
  • Specifically speaking, the minimum requirements principally sought by the Turkish Competition Board are as follows. It should be noted that even if the following conditions are fulfilled, the Competition Board may still deem that the information exchange constitutes a competition law violation depending on the characteristics of the case in question.
    • The figures relating to the relevant industry must be properly aggregated. The information should not individualize the figures on the basis of each enterprise concerned (i.e. there are a sufficient number of participants, e.g. 4 or 5, so that the data cannot be "reverse engineered" to identify individual competitor data). In other words, the data should not provide a breakdown of figures by producer, product, customer or otherwise.
    • The exchanged information should not allow undertakings to do benchmarking.
    • The data must be collected and reported by a third party (such as a public survey company) under appropriate conditions of confidentiality.
    • The representatives of competitors must not discuss the information in meetings or otherwise.
    • The data must not be disseminated until it has ceased to be current for a certain period of time, and it should not include current or future data. The appropriate period of time can vary according to the dynamics of the relevant market but it is generally two months or longer.
    • The data should not provide projections of competitors' future market behavior.
    • The data should not include analyses, recommendations, or other elements.