As it is known, the Competition Authority (“Authority“) was published the Draft Communiqué on the Agreements, Concerted Practices, Acts and Conducts of Association of Undertakings that Do Not Considerably Restrict Competition (“De Minimis Communiqué Draft”) on October 23, 2020. Authority’s Communiqué No. 2021/3 on Agreements, Concerted Practices, Acts and Conducts of Association of Undertakings that Do Not Considerably Restrict Competition (“Communiqué“) was published in the Official Gazette dated March 16, 2021 and No. 31425 and entered into force on the same day.
What Is The De Minimis Principle?
The de Minimis principle is not only a valid in competition law, but also in all areas of law. De Minimis is a Latin word, expressed in our language as ”about the little things “. However, the De Minimis principle within the scope of Competition Law; it is principle that states that association agreements that prevent, disrupt or restrict competition should not be taken into account in the application of Competition Law rules, if they do not affect the trade significantly.
What Is The Purpose Of The Communiqué?
With the aforementioned communiqué, except for clear and gross violations; it is aimed to determine the principles and procedures on the basis of which criteria will be determined for agreements, concerted practices, acts and conducts of association of undertakings that do not considerably restrict competition in the market and will not be subject to investigation.
What Are The Important Regulations In The Communiqué?
Communiqué states that clear and gross violations would fall outside the scope of the Communiqué, and these violations cannot benefit from the de minimis exception. In this context, a dual characterization is made for clear and gross violations in the Communiqué.
- Horizontal clear and gross violations: Price fixing; customer/supplier/territory/trade channel allocation; restrictions or quotas on supply; bid-rigging; or sharing competitively sensitive information such as future prices, production or sale volumes, between competitors.
- Vertical clear and gross violations: Determination of the buyer’s fixed or minimum sales prices between undertakings operating at different levels in production or distribution chains.
Within the scope of the Communiqué, except for the cases of clear and gross violations, the Authority may choose to refrain from initiating an investigation in the below-mentioned cases as such cases will be considered as not considerably restricting competition:
- In case of agreements between competing undertakings, if the aggregate market share of the agreeing parties is below 10% in any one of the affected markets,
- In case of agreements between non-competing undertakings, if the market share of each of the agreeing parties is below 15% in any one of the affected markets.
If it is not possible to classify the parties to the agreement as competitors or non-competitors, then the 10% threshold that is applicable for the competing undertakings will be applied.
Otherwise, if the parallel networks created by similar vertical restrictions cover more than 50% of the relevant market, then the above thresholds will be applied as 5% both between competitors and non-competitors.
In addition , if the market shares of the parties to the agreement or members of the association of undertakings do not exceed the abovementioned thresholds by more than 2% in the affected market in two consecutive calendar years during the term of the agreement or the decision, the said agreement or decision will be considered as not restricting competition considerably. Thus, the relevant agreement or decision may also be considered within the scope of the “de minimis” principle exemption in this case.
It should be emphasized that not exceeding the above-mentioned thresholds does not necessarily mean that the relevant agreements or decisions will be exempt from investigation.
Finally, as of the effective date of the aforementioned Communiqué, it has been stipulated that the De Minimis principle exception will be applied for ongoing preliminary and full-fledged investigations.
Buse Mercan
