TURKEY Trends and Developments Contributed by: Gökşin Kekevi and Yıldız Akınsal, Özay Law Firm
public and capable of revealing the source of the data may constitute an infringement of competition law. By contrast, information exchanges satisfying all of the following conditions will, as a general rule, not give rise to a competition law infringement: • the information exchange must be conducted by an independent third party; • it must not be possible to identify the source of the data or the content of any individual participant’s data; • the information exchanged must relate to a period at least three months prior to the date of the exchange; • the information must include data from at least ten participants; and • no participant’s data may account for more than 25% of the aggregated dataset. In practice, the TCA’s approach to agreements and/ or exchanges of information on C&B is just as strict as its approach to no-poaching agreements. One par - ticularly striking example is Private Hospitals decision dated 24 February 2022 and numbered 22-10/152- 62. In that case, some undertakings argued that they had not shared any information in the relevant WhatsApp groups or during the meetings in which alleged anti-competitive communications had taken place. The TCA rejected these arguments by adopt - ing an approach comparable to the concept of public distancing under EU competition law. It stated that communications containing competitively sensitive information may constitute an infringement even if the information is disclosed unilaterally. Accordingly, an undertaking receiving such information must imme - diately and unequivocally inform the disclosing party that it does not intend to participate in any anti-com - petitive arrangement. Failing this, the recipient may be deemed to have tacitly expressed its consent to the arrangement and may therefore become a party to the infringement. The TCA reasoned that an undertak - ing receiving competitively sensitive information from its competitors cannot realistically avoid taking that information into account when determining its own commercial policies. Another striking example is TV Series Producers decision dated 20 November 2025 and numbered
25-43/1044-596. The investigation was concluded by way of settlement, with the parties admitting the infringement in exchange for a reduction in fines. In that case, the TCA imposed fines of approximately USD1.8 million and USD1.1 million on Ay Yapım and Med Yapım, respectively. The conduct giving rise to these fines consisted of a single WhatsApp commu - nication between two executives containing general information regarding prospective salary increases for employees. When the TCA’s strict approach is combined with the high inflation in Türkiye, the risks for companies increase even further. For many years, Türkiye has had the highest inflation rate among OECD countries, reaching levels up to 70%. Compared to countries with low inflation, this situation increases both the necessity and frequency of benchmarking regard - ing C&B for companies in Türkiye. Indeed, in such high-inflation environments, the real income level of employees depreciates rapidly, leading to increased dissatisfaction being conveyed to company manage - ment and HR departments. Under these circumstances, company executives and/or HR professionals contact friends at other companies (including those that are not direct com - petitors) to obtain C&B information, either verbally or through channels like WhatsApp. Although the inten - tion behind these information exchanges is often not to suppress C&B but, on the contrary, to improve them for the benefit of employees, such exchanges can still be deemed an infringement because they influence policies that undertakings must determine unilater - ally and independently (see, for example, French High Schools decision dated 24 April 2024 and numbered 24-20/466-196). Therefore, it is of paramount impor - tance to train critical employees on how and from which sources they can acquire C&B information, and how they can lawfully report related benchmark - ing studies within the company. Competition Compliance Programmes Driven by its access to virtually unlimited human and financial resources, the TCA conducts dawn raids on a new sector and/or company almost every single day, performing inspections on telephones, comput - ers, desks and bags, including the personal devices of
213 A NTITRUST LI T IGATI O N 2026
CHAMBERS.COM
Powered by FlippingBook