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NEWS LETTER 2 0 1 0
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The End of an Era in the Liquid Fuel Sector:
September 18, 2010
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The Competition Board, by its decision No. 09-09/186-56, dated
05.03.2009, reviewed the distribution agreement and the related usufruct
agreement between Pol-Pet Petrol Ürünleri Tur. Konaklama veDin Tesisleri
Ltd. Şti.( hereinafter referred to as “Pol-Pet”) and M-Oil, and decided that
the parties can benefit from an exemption whose requirements are specified
in the Block Exemption Communiqué No. 2002/2 on Vertical Agreements
(hereinafter referred to as the “Communiqué”) until 18.09.2010, and that
it is impossible to benefit from the exemption after the specified date. The
Pol-Pet and the Barbaros Liquid Fuel decisions (decision No. 09-09/187-
57, dated 05.03.2009), dubbed “the usufruct decisions” by the sector, have
created wide reactions and have become the target of both negative and
positive commentators. The Pol-Pet decision and the earlier decisions have
been reviewed in my article titled, “The Competition Board Brought a
New Order to the Liquid Fuel Sector” published in the May 2009 edition
of the Newsletter.
Pol-Pet Decision
Concerning the decision stated above, there was a distributorship
agreement between Pol-Pet and M-Oil, and a usufruct right was
established on the immovable of Pol-Pet for fifteen years in exchange for
the distributorship.
According to the Communiqué, that also applies to distributorship
agreements, for the non-competition to be in the scope of the Communiqué,
it has to be anticipated for at most five years. Pursuant to the Article 5/a of
the Communiqué,
“the non-competition clause for an indefinite period or
for more than five years on the purchaser”
does not fall within the scope
of this Communiqué and does not benefit from the exemption.
The Competition Board, while reviewing whether the duration of five
years has been exceeded concerning the non-competition regulated by the
distributorship agreement, takes into consideration personal or real rights
such as loan contracts, equipment contracts, long-term leasing contracts, or
granting long-term usufruct, which are related to the distribution agreement
*
Article of August 2010 – Prof. Dr. H. Ercüment Erdem