TURKEY Trends and Developments Contributed by: Gökşin Kekevi and Yıldız Akınsal, Özay Law Firm
restricting employee mobility may, exceptionally, be regarded as falling outside the scope of a competition law infringement. Such arrangements are encountered particularly in service agreements concluded within the context of vertical relationships. For example, where an undertaking procures HR, IT, consultancy or similar services from another company, an agreement between these parties not to recruit, either unilaterally or mutually, employees assigned to the relevant pro - ject may not constitute an infringement under certain conditions, where the restriction is intended to protect trade secrets, safeguard investments or ensure the uninterrupted provision of the relevant services. According to the TCA’s Guidelines, a restriction may be regarded as an ancillary restraint only if it satisfies all three of the following cumulative conditions, name - ly that it is directly related, necessary and proportion - ate to the implementation of the principal agreement. • Direct relation: the restriction must be directly relat - ed to the agreement between the parties, and must support the implementation of that agreement. • Necessity: the restriction must be objectively nec - essary for the agreement. This condition is deemed to be satisfied where implementation of the princi - pal agreement would be impossible or extremely difficult in the absence of the restriction. • Proportionality: for the restriction to be regarded as proportionate, the objective pursued by the restriction must not be achievable through another means that is less restrictive of competition. Accordingly, the following requirements must be satisfied: (a) the duration of the restriction must be clearly specified and must not exceed the period necessary to achieve the objectives pursued by the restriction; (b) the employees subject to the restriction must be clearly identified by reference to the imple - mentation of the principal agreement, and the restriction must not extend to employees other than those who are of key importance; (c) the geographic scope of the restriction must not extend beyond the area in which the princi - pal agreement is implemented; and (d) where it would be sufficient for the restric - tion to apply to only one party, or to a smaller
number of parties to the principal agreement, the restriction must not be extended to cover additional parties. Although the Guidelines set out the principles sum - marised above, they do not provide any examples of contractual clauses or similar arrangements that have been treated as ancillary restraints, which par - tially overshadows the guiding nature of the Guide - lines. This lack of guidance increases the importance of following the TCA’s decisions closely. Another instance where the TCA does not find an infringement when investigating alleged no-poaching agreements is when the relevant undertakings prove that their decision not to hire employees from another company is based not on an agreement, but entirely on their own independent and unilateral HR policies or commercial choices (see, for example, decisions of Human Resources - I dated 26 July 2023 and num - bered 23-34/649-218, Human Resources - II dated 27 February 2024 and numbered 24-10/170-66, and Pharmaceuticals dated 11 September 2025 and num - bered 25-34/810-474). However, cases where compa - nies escape fines based on this argument are clearly exceptions. Agreements and/or information exchanges on C&B The Guidelines define “wage-fixing agreements” as “agreements whereby undertakings jointly determine working conditions applicable to their employees, including wages, salary increase rates, working hours, benefits, compensation and leave entitlements”, and emphasise that such agreements constitute restric - tions of competition by object and are classified as cartels. However, as well as wage-fixing agreements, information exchanges on C&B also constitute infringements of competition law, which the Guide - lines exemplify through salary increase rates, working hours, benefits, payments and leave entitlements. The Guidelines also provide explanations regarding exchanges conducted through independent mar - ket research and HR consultancy companies such as Korn Ferry, Mercer and WTW. In this respect, the Guidelines state that the sharing of information that is disaggregated, current and/or forward-looking, non-
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