1. Introduction
As is well known, for many years the
term “competition law” was associated with pricing, sales strategies and
distribution relationships. In recent years, however, the focus of competition
authorities has increasingly shifted towards labor markets, and this shift has
made human resources departments one of the direct actors in competition law
compliance.
This approach rests on the premise
that employers compete with one another not only when selling products and
services but also when seeking to attract qualified labor. Coordination between
rival employers on wages, fringe benefits, working models or recruitment
conditions may reduce employees’ alternative job opportunities and bargaining
power. For this reason, companies that do not operate in the same product
market may nevertheless be competitors in respect of labor: a technology
company and a financial institution that both wish to employ the same software
engineers are an example of this.
The Guidelines on Competition
Infringements in Labor Markets, adopted by the Competition Board’s Decision numbered
24-49/1087-RM(4) and dated 21 November 2024 [1], have placed this approach
within a systematic framework. The Guidelines expressly establish that labor
markets also fall within the scope of the Law on the Protection of Competition
Nr. 4054.
2. No-Poach Agreements
No-poach agreements are
understandings under which an undertaking refrains from making job offers to
the employees of another undertaking, from hiring them, or from hiring them
except under certain conditions. It is not necessary for the prohibition to be
framed expressly as “we will not hire each other’s employees.” Arrangements
such as obtaining the current employer’s permission before making an offer,
notifying the other company before a transfer, or considering an applicant only
if the employee applies on her/his own initiative may, depending on the
circumstances of the case, be characterized in the same way. Informal
understandings reached through expressions such as “gentlemanliness” or
“industry etiquette” may also be subject to examination. The Guidelines address
no-poach agreements as a serious restriction of competition within the
framework of Article 4 of the Law and accept that they may be restrictive of
competition by object. In that case, it may not be necessary in every instance
to demonstrate separately how far wages have actually decreased or how many
employees have been unable to change jobs.
The most dangerous misconception in
HR practice is the belief that an infringement can only arise from a written
and signed agreement. Under Law Nr. 4054, the concept of an “agreement” is
interpreted broadly; e-mails, WhatsApp messages and meeting notes that
demonstrate a concurrence of wills may also be taken into consideration.
Sentences such as “We do not hire from you, and you do not hire from us.” or
“Let us not raise the pay raise rate above X percent this year.” create a
serious risk in this respect.
3. Exchange of Information on Wages and Working Conditions
The second major risk area is the
exchange of competitively sensitive information among rival employers, such as
current wages, rates of wage increases, bonus and fringe benefit policies,
salary bands, and recruitment targets. These parameters must be determined
independently by each company; where competitors learn of one another’s plans,
uncertainty in the market is reduced and parallel behavior is facilitated.
That said, not every salary survey
is unlawful. The currency of the information, its level of detail and whether
it can be disaggregated at the company level are decisive. Data that is managed
by an independent third party, collected from a sufficient number of companies,
aggregated and historical in nature carries a considerably lower risk than the
direct exchange of current salary tables between two competitors.
4. The Trend Reflected in Recent Board Decisions
In the investigation conducted by
the Competition Board into private educational institutions operating in
Kocaeli, the schools’ tuition and meal fees were examined, as was whether
employee mobility between employers had been restricted. The file was concluded
by settlement with respect to various parties, most notably in the decisions
dated 18 April 2024 and numbered 24-19/435-180, 24-19/435-181, 24-19/435-182
and 24-19/435-183 [2]. The most important lesson of the file for HR is that a
practice regarded as customary in a sector cannot be considered safe from the
standpoint of competition law. In the Board’s Decision numbered 24-20/466-196
dated 24 April 2024 concerning the French high schools [3], it was examined
whether five French high schools in Istanbul had coordinated in determining the
salaries of Turkish teachers, in addition to their enrollment fees. The Board
concluded that Article 4 had been infringed and imposed an administrative
monetary fine. This decision concretely demonstrates that employee remuneration
is a fundamental competition parameter that must be determined independently by
employers. It should also be noted that the international trend points in the
same direction: in its Delivery Hero–Glovo investigation, concluded in 2025
[4], the European Commission assessed no-poach arrangements and the exchange of
competitively sensitive information together and imposed fines exceeding
hundreds of millions of euros. The decision established that the minority
shareholding relationship between the parties did not automatically confer
legitimacy on no-poach practices. In the United States as well, restrictions on
staff transfers within franchise systems are increasingly being scrutinized.
5. Non-Solicitation Clauses in Contracts
Not every non-solicitation clause
automatically constitutes an infringement. Temporary protection for a limited
number of critical employees may be envisaged within the scope of a company
transfer, a joint venture or a specific project. However, the clause must be
genuinely linked to the main transaction, and its scope, duration and necessity
must not create a prohibition broader than that required by the transaction.
For this reason, standard clauses such as “the parties may not employ each
other’s employees” in supply, consultancy, franchise and distributorship
agreements should not be used automatically. It must be emphasized that this
issue is distinct from the non-competition obligation between employer and
employee set out under Article 444 et seq. of the Turkish Code of Obligations.
The no-poach problem in competition law arises where independent employers
restrict employee mobility among themselves.
6. Practical Compliance Recommendations for HR
A significant proportion of
infringements in labor markets arise not from a formal cartel organization but
from contacts in the day-to-day workflow. For this reason, it is recommended
that HR be incorporated into the company’s competition law compliance program,
and that the following steps be taken: an HR competition policy should be
prepared that lists, with concrete examples, the subjects that may not be
discussed with competitors (wages, pay raises, bonuses, employee transfers,
recruitment plans); recruitment specialists, compensation and benefits teams
and relevant managers should be included in regular competition law training;
the non-solicitation clauses in existing contracts should be inventoried and
reviewed in terms of purpose, duration and scope; independent third parties and
aggregated data should be preferred in salary surveys; where a sensitive
subject is raised at industry meetings or in WhatsApp groups, an objection
should be expressly stated and, if necessary, the discussion should be left;
and an internal reporting mechanism should be established that conveys any
suspicious contact with competitors to the legal and compliance team without
delay. Otherwise, pursuant to Article 16 of the Law, undertakings that infringe
Article 4 may be subject to an administrative monetary fine of up to ten
percent of their annual gross revenues; in addition, sanctions may also be
imposed on managers or employees who are found to have had a decisive influence
on the infringement. Beyond this, on-site inspections, loss of management time,
private law disputes and damage to the employer brand are also part of the real
cost of an infringement.
7. Conclusion
The Competition Board’s recent
decisions and the Guidelines published in 2024 show that competition for
employees is treated as seriously as competition in product and service
markets. From an HR perspective, the basic principle is clear: a company must decide
whom to hire, and on what terms to employ its employees, independently of its
competitors. Accordingly, competition law compliance programs must not be
limited to sales and marketing units; they must cover all HR processes, from
recruitment to compensation policy, from benchmarking studies to the personnel
provisions in contracts. Human resources is no longer merely an “employee
management” function; it is one of the most important areas in which a
company’s competition law risk is managed.
Att. Melda
İz
References:
1. Decision of the Competition Board dated 21
November 2024 and numbered 24-49/1087-RM(4)
2. https://www.rekabet.gov.tr/Karar?kararId=9c0d6472-68d3-4f0a-a168-13f9f6ba3ba0
3. https://www.rekabet.gov.tr/Karar?kararId=2e4bd6a2-6686-4283-98b5-0bdcc4d755ec
4. https://tr.euronews.com/2025/06/02/abden-tarihi-ceza-gida-teslimat-devlerine-kartel-suclamasi
