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between the parties. According to the Board, these agreements or rights
cannot be used to expand,
de facto
, the duration of the non-competition
obligation. Consequently, in such cases, the exemption conditions granted
by Communiqué No. 2002/2 will be removed with respect to durations
exceeding five years.
The Board stated that the transition period for making non-competition
provisions laid down in vertical agreements comply with Article 5 of the
Communiqué No. 2002/2 started on 18.09.2003 and ended on 18.09.2005.
However, the Board decided that the agreements which were concluded
before 18.09.2005 and whose duration exceeds five years will benefit from
the exemption laid down in the Communiqué until 18.09.2010 according to
the
“reducing to the maximum limit”
principle applied by the Competition
Board.
In the present case, the Board decided that the agreement concluded by
Pol-Pet and M-Oil and accordingly the official deed related to the usufruct
will benefit from an exemption until 18.09.2010 as per Communiqué No.
2002/2. However, the Board emphasized that if distributors are obliged to
remake agreements within the framework of the usufruct as of this date, a
transaction must be initiated within the scope of Article 4 of the Act No.
4054.
The findings in the Total-Akdağ decision of the Council of State
dated 13.05.2008 were determinant in these decisions. In its decision, the
Council of State stated that even though the exploitation contract is limited
to one year, it will expire with the leasing contract due to leasing contract’s
impact on the exploitation contract and that it will turn into an indefinite
period contract. In this case, pursuant to the Communiqué provisions,
imposing non-competition obligations on distributors through indefinite
period contracts or contracts whose duration exceeds five years might take
the agreement out of the scope of the Communiqué, and the exploitation
contract is subject to an investigation within the scope of Article 4 of the
Act No. 4054.
Legal proceeding
Petrol Ofisi initiated an action for nullity based on the plea of
unconstitutionality before the Council of State for the Pol-Pet decision
and the decision No. 09-09/187-57 in this direction, the announcement
made by the Competition Board in accordance with these decisions, and