The general information about the important concepts in competition law enforcement is given below.

Undertaking: In competition law, undertaking means natural and legal persons who produce, market and sell goods and services in the market as well as units constituting an economic unity which can take decisions independently.  The concept of undertaking as defined above is built on “economic activity”, “independence” and “economic unity”. It is different from the concept of undertaking which is covered by other legislation and which can be used instead of firm, company or enterprise.  For instance, while the competition law considers private or public companies as well as self-employed persons, which can take decisions about their economic activities independently as undertaking, a company for which all decisions about economic activities are taken by the holding it is affiliated to, a practitioner or a lawyer who works for a company or an institution according to a labor contract are not regarded as undertakings in terms of competition law.

Associations of Undertakings: The concept of association of undertakings refers to any kind of associations with or without a legal personality, which are formed by undertakings to accomplish particular goals. The most common example of associations of undertakings is the associations where undertakings are represented by natural persons.  Similarly, chambers of industry and commerce, trade associations, unions and bars are considered as associations of undertakings.

Agreement: In terms of competition law, agreement can be made between two or more undertakings operating at the same level in the market, in other words, between competitors or undertakings operating at different levels of production/distribution chain, in other words, undertakings in a vertical relationship.

For competition law enforcement, agreements involving competitors are important due to competitive concerns.  Within this framework, agreement refers to implicit or explicit concordance between wills or unity of behavior, which is performed by competing undertakings in order to gain mutual benefits and which is restrictive of competition by object and/or effect. Agreements restricting competition are generally about determining or sharing economically critical parameters such as price, supply or customers.

Based on the explanations about competition legislation above, for instance, a cartel agreement where competitors determine the price of the relevant product or service is anticompetitive. Likewise, agreements between suppliers and dealers imposing obligations on dealers can be anticompetitive; thus, can fall under the scope of competition rules’ intervention.

Whether agreements between competitors or undertakings in a vertical relation are concluded orally or in written form does not make any difference in terms of competition law. What is important is whether implicit or explicit concordance between wills or unity of behavior between parties to the agreement has the object and/or effect of preventing, distorting or restricting competition.

Cartel: In competition law, cartels are regarded as the most harmful type of violation for social welfare. Cartels refer to explicit or implicit agreements or relations among undertakings in the market aiming to reduce or restrict competition in a market for goods or services.  Determining prices, the amount of supply, markets shares, regions where the products will be sold in general, cartels are typically made under the name of “gentlemen’s agreement” today.

Exemption: From the perspective of competition law, although some agreements have anticompetitive effects, their social benefits may outweigh the social harm caused by those affects. In order to ensure that such agreements are realized and the expected clear competitive benefits are obtained, competition laws include provisions that exempt agreements from prohibitive provisions concerning anticompetitive agreements. 

Article 5 of the Act no 4054 on the Protection of Competition (the Act no 4054) covers the regulation about immunity for agreements that are under the scope of article 4 of the Act from invalidity and monetary sanctions due to the prohibition in article 4 of the Act.  According to this, agreements which fulfill all of the conditions in article 5 of the Act no 4054 are exempt from the prohibition in article 4 of the Act. The conditions listed in article 5 of the Act, all of which agreements must fulfill to benefit from exemption are given below:

• (a) They must ensure new developments or improvements or economic or technical improvement in the production or distribution of goods, and in the provision of services,
• (b) The consumer must benefit from the above-mentioned,
• (c) They must not eliminate competition in a significant part of the relevant market,
• (d) They must not restrict competition more than necessary to achieve the goals set out in sub-paragraphs (a) and (b).

Mergers and Acquisitions: In the most general sense, merger means the joining of two or more undertakings to an existing or newly created undertaking. In this process, companies joining to the existing undertaking lose their legal personalities.  In mergers realized under a new company, all parties to the merger lose their legal personalities.

Acquisition means a transaction where an undertaking purchases assets in a way to gain control over a part of or the whole of another undertaking. Unlike mergers, in acquisitions undertakings may not lose their legal personalities.  Cases where the control of one undertaking is transferred to another undertaking are regarded as an acquisition.

Joint ventures which will permanently perform all the functions of an independent economic entity and where strategic decisions will be taken jointly can be addressed under the scope of mergers/acquisitions.

According to article 7 of the Act no 4054 and the Communiqué no 2010/4 Concerning the Mergers and Acquisitions Calling for the Authorization of the Competition Board, which was issued to regulate the procedure and principles about the implementation of this article, mergers and acquisitions which lead to a permanent change in control and exceed certain turnovers must be notified to the Competition Board. 

Dominant Position In Competition law, dominant position refers to the power of one or more undertakings in a particular market to determine economic parameters such as price, supply, the amount of production and distribution, by acting independently of their competitors and customers.

Negative Clearance: The establishment by the Board, upon the application by the undertaking or associations of undertakings concerned, that an agreement, decision, practice or merger and acquisition are not contrary to Articles 4, 6 and 7 of this Act is called negative clearance.