New development
The Turkish Competition Authority ("Authority") had published the awaited Draft Guidelines on Competition Violations in Labor Markets for public consultation on 16 September 2024 ("Draft Guidelines"). On December 3, 2024, the final version of the Guidelines on Competition Violations in Labor Markets ("Guidelines") was published on the official website of the Authority, which was adopted by the Competition Board's decision dated November 21, 2024 and numbered 24-49/1087-RM(4).1 With the publication of the Guidelines, Türkiye is now one of the jurisdictions with a particular secondary legislation on competition law concerns in labor markets.
The Guidelines do not introduce any substantive changes on to the Draft Guidelines published on September 16, 2024. You can access our legal alert on the Draft Guidelines in English from here.
The Guidelines explicitly stipulate that agreements or concerted practices between employers that have the purpose or effect of preventing the free movement of labor in the market or fixing the wages and other working conditions of employees, and such decisions and practices of associations of undertakings shall be considered as a violation of Article 4 of the Law No. 4054 on the Protection of Competition ("Law No. 4054").
While the Draft Guidelines stated that undertakings operating in different sectors can be considered as competitors in the labor market if they have similar demand structures, this issue has been further clarified in the Guidelines and it is envisaged that undertakings will be considered as competitors regardless of their activities in output markets.
In addition to wage-fixing and non-poaching agreements, the sharing of workforce-related data among competitors is also considered a type of violation by the Guidelines. While the Draft Guidelines only exemplified such information, the Guidelines provide a definition of such information. Accordingly, the Guidelines define competitively sensitive information in the labor market as information relating to wages or other working conditions that have a clear impact on employees' employment choices or general labor mobility.
Moreover, the Guidelines stated that the exchange of information meeting all of the following conditions will not give rise to anti-competitive effects in the labor market:
- The exchange of information should be conducted by an independent third party,
- It should not be possible to understand the data source or individual data content,
- The information subject to exchange must be at least three months old,
- The information must include data from at least ten participants,
- No participant's data should have a weight of more than 25% of the total data.
It is understood that the Guidelines took similar approach with the US Department Of Justice and Federal Trade Commission with regards to the safe harbour in terms of information exchange in labour markets.2
In terms of the application of the of ancillary restraints regime in the labor market, there is no significant change in the Guidelines. The Guidelines state that for a restriction to meet the proportionality condition, the duration of the restriction should not be longer than what is necessary to achieve the objective of the restriction, instead of being sufficient for the objective of the restriction. As the duration in question may vary on a case-by-case basis, the Competition Board's approach to this time limit will be shaped by the Competition Board's decisional practice.
Lastly, the Guidelines indicate that all the specific circumstances and characteristics of the case will be evaluated instead of providing detailed explanations such as the ones in the Draft Guidelines for infringements arising from abuse of dominant position in the labor markets.
Footnotes
2 For the withdrawn policy text, see: https://www.ftc.gov/system/files/attachments/competition-policy-guidance/statements_of_antitrust_enforcement_policy_in_health_care_august_1996.pdf. See also the Antitrust Guidance for Human Resources Professionals published by the US Department of Justice and the Federal Trade Commission: https://www.justice.gov/atr/file/903511/dl. For another text on which the Guidelines are believed to be based, see: https://www.ftc.gov/enforcement/competition-matters/2014/12/information-exchange-be-reasonable
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