TURKEY Trends and Developments Contributed by: Gökşin Kekevi and Yıldız Akınsal, Özay Law Firm
Conduct Constituting Competition Law Infringements in Labour Markets
ed, illustrates both the magnitude of the risks faced by undertakings and the ease with which such risks may arise. In practice, no-poaching agreements more common - ly take the form of unwritten and unsigned arrange - ments, referred to as “gentlemen’s agreements” in competition law terminology. Indeed, the TCA may impose a fine solely on the basis of, for example, an internal WhatsApp message proving an anti-compet - itive agreement and/or exchange of information (see, for example, Pharmaceuticals decision dated 11 Sep - tember 2025 and numbered 25-34/810-474). As also stated in the Guidelines, a finding by the TCA that a no-poaching agreement exists is not limited to circumstances in which two undertakings agree that they will not hire each other’s employees under any circumstances. Agreements among companies on matters such as giving courtesy notice to a current employer before an employee’s transfer to another company, or requiring an employee to apply for a job only after resigning from their current position, may constitute an infringement in the eyes of the TCA, no matter how “gentlemanly” they may seem at first glance. Furthermore, in the presence of internal or exter - nal communications, companies’ defences stating that they did not implement the alleged agreement are often rejected by the TCA since it considers no- poaching agreements to constitute restrictions of competition by object; accordingly, the absence of anti-competitive effects does not preclude a finding of infringement by referring the concept of a “restric - tion by object” under European Union (“EU”) law and a “per se violation” under US law. Notwithstanding the TCA’s strict approach, there are also examples in which certain employee non-solic - itation arrangements have not been characterised as infringements. One such example is the Human Resources - II decision dated 27 February 2024 and numbered 24-10/170-66, in which fines were imposed on certain undertakings, but 12 undertakings were not fined. The assessment leading to this outcome was based on the concept of ancillary restraints. Under the ancillary restraint doctrine, certain agreements
As noted above, competition law infringements in labour markets may broadly be classified into two cat - egories: “no-poaching agreements” and “agreements and/or information exchanges on C&B”. No-poaching agreements The Guidelines define no-poaching agreements as “agreements entered into directly or indirectly where - by one undertaking agrees not to make employment offers to, or hire, the employees of another undertak - ing”. The Guidelines further state that: • a no-poaching agreement also exists in cases where undertakings do not completely ban solic - iting or hiring each other’s employees, but sub - ject employment to reciprocal approval or to the approval of the employee’s current employer; • such agreements may relate not only to current employees of the undertakings but also to their former employees; and • such agreements constitute restrictions of compe - tition by object and are classified as cartels. Although relatively uncommon, no-poaching agree - ments may be incorporated into written and executed contracts, particularly where a supplier-customer rela - tionship exists. One example is the TCA’s Borusan / Testinium decision dated 30 March 2023 and num - bered 23-16/287-100. The investigation was con - cluded by way of settlement, under which the parties admitted the infringement in exchange for a reduction in the fine. In that case, the TCA found that the following provi - sion contained in an agreement between a logistics company and a small-sized software company provid - ing services to it constituted an infringement: “During the term of their engagement and for a period of two years thereafter, the parties may not make employ - ment offers to each other’s personnel without the pri - or consent of the other party.” Due to this provision, the fine imposed on the logistics company reached approximately USD1.6 million. The imposition of such a substantial fine on the basis of a single contractual provision, which had been included at the request of the software company but had never been implement -
211 A NTITRUST LI T IGATI O N 2026
CHAMBERS.COM
Powered by FlippingBook