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the Article 5/II of the Act No. 4054. In this case, the 13
th
Chamber of the
Council of State rejected the motion for stay. The appeal concerning the
motion for stay was also rejected by the Council of State, Assembly of the
Chambers for Administrative Cases. The 13
th
Chamber of the Council of
State, in its decision No. 2009/3044 E., 2010/5458 K., rejected the plea
of unconstitutionality with a reprise of the findings of the Total-Akdağ
decision.
The action for nullity initiated by Opet Petrolcülük A.Ş., on similar
legal grounds was also rejected by decision No. 2009/5164 E., 2010/5457
K., dated 28.06.2010 of the 13
th
Chamber of the Council of State,
based on the same justification. Consequently, the principles put forward
by the Competition Board in the Pol-Pet decision were subject to judicial
review.
Concerning the actions initiated by Shell & Turcas Petrol A.Ş., the
13
th
Chamber of the Council of State rejected the motions for stay. The
appeals against these rejections before the Council of State, Assembly of
the Chambers for Administrative Cases were also rejected.
What is next?
In accordance with the Pol-Pet decision of the Competition Board,
the liquid fuel distributorship agreements which were concluded before
18.09.2005 and the vertical agreements composed of the related usufruct
and leasing agreements registered in the official deed have to be terminated
no later than 18.09.2010, in case they include a non-competition clause
whose duration exceeds five years, a usufruct right, or a leasing agreement,
or the necessary changes in the agreements have to be made in accordance
with the provisions of the Communiqué. The President of the Competition
Board, in his statement published on the Competition Board’s website,
emphasized that there is not any work on the agenda of the Competition
Board to amend entirely or in part the Communiqué or to postpone its
enforcement. Therefore, postponement is not possible with respect to the
date September 18, 2010.
Pursuant to Article 56 of the Act No. 4054, an agreement not having the
conditions of exemption is subject to sanctions for invalidity. This invalidity
affects not only the clause in violation of the competition law legislation,
but also the agreement in its entirety. Consequently, if the necessary
changes in the distributorship agreements composed of the usufruct and