Article 4 of the Law on the Protection of Competition No. 4054 (“Competition Law”) makes it a serious violation to engage in a concerted practice. It forbids concerted practices restricting competition between undertakings. It is closely modelled after Article 101 of the Treaty on the Functioning of the European Union.
There is no universal or unanimously accepted definition of concerted practices. The Turkish Competition Board (“Board”) has not consistently followed the EU competition law precedents regarding the concept of concerted practice. However, the Board’s recent decisions illustrate—or at least suggest—an increased alignment with the European perspective. In this current context, the Board has listed in many decisions the following elements, which should exist concurrently in order for a behavior to be characterized as a concerted practice:
- Coordination or cooperation between two or more undertakings;
- Direct or indirect relations/contacts resulting in this coordination; and
- The objective of this coordination being the elimination of ambiguities regarding the future behavior of competitors.
The concepts of “agreement” and “concerted practice” should not be confused. They constitute two entirely different categories of violation in terms of their definition, conditions, elements, scope, standards of proof and penalty regimes.
In the case of a concerted practice, a coordination should occur consciously, either directly (i.e. meetings, telephone calls) or indirectly (i.e. exchange of information through third parties).
Concerted practices should lead to consensus among participants. Unilateral decisions, for instance, cannot represent a concerted practice under the scope of competition law. However, it is not necessary that the coordination between undertakings actually produces visible results of concentration in the market; its mere existence is sufficient.
The essential requisite of a concerted practice is that the coordination aims at preventing, distorting or restricting competition in a given market.
Finally, concerted practices can manifest themselves between any undertakings, regardless of their legal personality or their characterization as public or private.
To sum up, a consensual definition of concerted practices can be the following: “A concerted practice is a form of co-ordination, without a formal agreement or decision, by which two or more companies come to an understanding to avoid competing with each other. The co-ordination need not be in writing. It is sufficient if the parties have expressed their joint intention to behave in a particular way, for example in a meeting, a telephone call or an exchange of letters.”