1 GENERAL P REAMBLE  
 OF THE BLOCK  EXEMPTION COMMUNIQUÉ  
RELATING TO TECHNOLOGY TRANSFER AGREEMENTS1 
 
 Technology transfer agreements which involve  intellectual property rights  —
referring  to patents, utility models, industrial design s, integrated circuit topog raphies , 
plant breeders ’ rights or software rights  — and know -how, may bring about various 
economic efficiencies such as encouraging  research and development activities , 
preventing  waste of resources through duplicati on of research and developments, 
facilitating the dissemination of the knowledge and technology resulting from the 
aforementioned research and development activities , increasing  competition by new 
and higher quality products brought to market.  In addition to the aforementioned  
economic  efficien cies, as intellectual property rights bestow monopolistic powers to 
their holders , technology transfer agreements involving such rights , considering also 
certain other provisions they contain , may lead to  the restriction of competition to a 
certain extent ; therefore  the said agreements may result in  being dealt with  under 
competition law.  
  
 Technology transfer agreements  whereby  the above mentioned intellectual 
property rights are licensed  are basically regulated  within the framework of the 
legislation relating to those rights. The s aid legislation allow s for provisions , such as 
granting of exclusive licenses, which may be restrictive of competition under certain 
circumstances, to be included in technology transfer agreements . In this context, 
considering t he existence of legal arrangements for intellectual  property rights , which 
are within the scope of the said agreements , and the powers bestowed by the se 
arrangements to the right holders, the interface between such powers and 
competition law regulations must be specified.  This Communiqué provides for the 
conditions whereby  the provisions , contained in technology  transfer agreements,  
which are restrictive of competition under Article 4 of the Act on the Protection of 
Competition No. 4054 , are granted exempti on when  they are accepted to satisfy the 
requirements under Article 5 of the Act No. 4054.  
 
                                                 
1 This part relating to general preamble has not been published on the Official Gazette.   2  In determining whether  technology transfer agreements which are restrictive of 
competition satisfy the requirements of exemption , the power , held especially by 
those undertakings which  are party to such agreements , within the relevant product 
and technology market , must be taken into account.  In other words, the existence of 
substitutable technologies and substitutable products at the disposal of the 
competitors  of the aforementioned  undertakings gains importance.   
 
 In the assessment of technology transfer agreements , paying attention to the 
distinction whether the agreement is between competitors or not  is quite important. It 
is less likely for technology transfer agreements between non -competitors to affect 
competition adversely than those that are between competitors.  Therefore  rules to be 
applied to technology transfer agreements between competitors and between non -
competitors , and especially factors  such as mark et share thresholds and limitations 
which would exclude the agreement from the coverage of block exemption needed to 
be differentiated.  
 
 Where the market shares of the undertakings which are party to technology 
transfer agreements exceed the market share thresholds set forth under this 
Communiqué , a detailed examination needs to be made so that it can be determined 
whether the said agreements are caught by Article 4 of the Act No. 4054  and whether 
they satisfy the requirements of exemption under Article 5.  In making this 
assessment,  all of the legal and economic factors  related to the agreements, 
particular ly the structure of the relevant technology and product market  must be 
taken into account.  
 
 This Communiqué  aims at the protection of competition within  the market  and 
provision of legal certainty to undertakings.  To that end,  the Communiqué gives the 
general conditions of block exemption for technology transfer agreements and 
enumerates the provisions which would prevent the said agreements from qualifyi ng 
for the block exemption. In addition to these, rather than the approach whereby an 
agreement is excluded from the scope of the block exemption as a whole in relation 
to certain obligations, it would  be appropriate to adopt  the practice  whereby the 
relev ant obligations only are disqualified from block exemption and thus the 
agreements containing the se continue to qualify for the block exemption.  Whereas  3 the existence of issues such as market share thresholds , obligations which leave  the 
agreement out of  the scope of the block exemption and obligations which are unable 
to qualify for block exemption is generally sufficient to protect competition within the 
market , the exemption will be withdrawn where it is established that an agreement or 
networks of agree ments which qualified for exemption  under this Communiqué still 
do not satisfy the requirements under Article 5 of the Act No. 4054 . 
 
 Although  this Communiqué covers only those technology transfer agreements 
between a licensor and a licensee , the provisio ns not constituting  the main purpose 
of the agreement however directly relating to the implementation of the technology 
concerned by  the agreement , which are contained in these agreements, shall also be 
covered by the exemption.  This Communiqué shall also apply where technology 
transfer agreements cover  issues related to more than one level of trade such as the 
obligations the licensee must impose on resellers , for example  in relation to setting 
up of a certain distribution system . However, in such a case , such obligations need to 
be in conformity with the relevant Competition Board  regulations . This Communiqué 
shall not apply to supply and distribution agreements between licensee and their 
buyers.   
 
 Among the other agreements  to which the Communiqué shall not apply are 
also the license agreements made through pooling of technologies in order to grant 
license to third parties as a package.  License agreements drawn  up for the purpose 
of having an undertaking carry out research and development activities  shall not be 
dealt with under th is Communiqué either.  
 
 In consideration of the explanations given above , the Competition Board 
decided that this Communiqué  be published.   4  
 BLOCK EXEMPTION COMMUNIQUÉ ON TECHNOLOGY TRANSFER 
AGREEMENTS  
(Communiqué No: 2008/2)  
 Purpose  
 ARTICLE 1 – (1) The purpose of this C ommuniqué is to determine the 
conditions for granting block exemption to technology transfer agreements from  the 
application of the  provisions of Article 4 of the Act No. 4054  dated 07.12.1994  on the 
Protection of Competition.  
 Scope  
 ARTICLE 2 – (1) This Communiqué shall apply to technology transfer 
agreements in which the licensor authorizes the licensee to use the licensed 
technology for the production of contract products and which fall under the scope of 
Article 4 of the Act No. 4054.  
 Basis  
 ARTICLE 3 – (1) This Communiqué has been  prepared depending on Article 4 
and 5 and subparagraph (f) of Article 27 of the Act No. 4054.  
 Definitions  
 ARTICLE 4 – (1) For the purposes of this Communiqué the following 
definitions shall apply:  
a) Technology transfer agreement means an agreement in which the relevant 
intellectual property rights and know how are licensed individually or mixedly . 
Agreements containing provisions which relate to the sale and purchase of 
products o r which relate to the licensing or assignment of other intellectual 
property rights shall be regarded to fall under this definition, provided that 
those conditions do not constitute the primary object of the agreement and are 
directly related to the produc tion of the contract products.  
b) Product means all products or services including intermediary goods and 
services.  
c) Contract products means products produced with the licensed technology.   5 d) Intellectual property rights means a patent, utility model, industrial  design, 
integrated circuit topography, plant breeder’s  right and related applications and 
software rights.  
e) Know -how means a confidential , substantial and identified package of 
knowledge resulting from experience and testing.  
In this definition  
1) Confidenti al means that know -how is not generally known or easily 
accessible as a whole or when pieced together or combined,  
2) Substantial means that know -how is significant and useful for the 
production of the contract products,  
3) Identified means that know -how is desc ribed in a sufficiently 
comprehensive and detailed manner  so as to verify that it satis fies the 
conditions for confidentiality and substantiality.  
f) Competing undertakings (competitors) means undertakings which compete 
on the relevant technology and/or the r elevant product market. In this context:  
1) Competing undertakings on the relevant technology market are 
undertakings which grant licenses related to competing technologies 
(actual competitors on the technology market). The relevant technology 
market covers t echnologies which are regarded by the licensees as 
interchangeable with or substitutable for the licensed technology, in 
respect of the technologies' characteristics, their license fees  and their 
intended use,  
2) Competing undertakings on the relevant product  market means 
undertakings which, at the time of the conclusion of the technology 
transfer agreement,  
1. are already active on both the relevant product market and the 
relevant geographic market (actual competitors on the relevant market) 
or 
2. would, fro m a realistic point of view,  undertake the necessary 
additional investments or necessary switching costs in order to timely 
enter the relevant product market or the relevant geographic market in  6 response to a small but significant increase in relative pric es ( potential 
competitors  on the relevant market ).  
g) Selective distribution system means a distribution system where the 
licensor licenses the production of the contract products only to licensees 
selected on the basis of specific criteria and where these licensees undertake 
not to sell the contract products to unauthorized distributors.  
h) Exclusive territory means a territory in which only one undertaking is allowed 
to produce and sell the contract products with the licensed technology. On the 
other hand , the fact that a license is given to another person  for the production 
of contract products within the related territory in order to create an alternative 
source of supply for a specific customer does not prejudice the exclusivity 
nature of that territory.  
i) Exclusive customer group means a group of customers to which only one 
undertaking is allowed to actively sell the contract products produced with the 
licensed technology.  
j) Severable improvement means an improvement that can be used without 
infringing the rig ht on the licensed technology.  
(2) The terms ‘undertaking’, ‘licensor’ and licensee shall include their 
connected undertakings.  
(3) Connected undertakings  means  
(a) undertakings in which a party to the agreement, directly or indirectly:  
1) has the power to  exercise more than half the voting rights, or  
2) has the power to appoint more than half the members of the 
supervisory board, board of management or bodies legally representing the 
undertaking, or  
3) has the right to manage the undertaking's affairs;  
(b) undertakings which directly or indirectly have, over a party to the 
agreement, the rights or powers listed in (a);  
(c) undertakings in which an undertaking referred to in (b) has, directly or 
indirectly, the rights or powers listed in (a);   7 (d) undertakin gs in which a party to the agreement together with one or more 
of the undertakings referred to in (a), (b) or (c), or in which two or more of the 
latter undertakings, jointly have the rights or powers listed in (a);  
(e) undertakings in which the rights or the powers listed in (a) are jointly held 
by: 
1) parties to the agreement or their respective connected undertakings 
referred to in (a) to (d), or  
2) one or more of the parties to the agreement or one or more of their 
connected undertakings referred to in (a) to (d) and one or more third parties.  
 General Conditions for Exemption  
 ARTICLE 5 – (1) The exemption granted by this Communiqué shall apply to 
technology transfer agreements which are entered between a licensor and a licensee 
and which relate to the production of contract products. The exemption shall continue 
to apply for as long as the protection granted to the intellectual property right 
regarding the licensed technology is valid and in case of know -how, as long as the 
know -how remains secret. In c ases where the know -how becomes publicly known 
because of the licensee, it shall continue to apply for during the term of the 
agreement.  
 (2) Where the undertakings party to the agreement are competitors, the 
exemption provided for in this Communiqué shall  apply on condition that the total 
market share of the parties does not exceed 30 % on the affected relevant 
technology and product market.  
 (3) Where the undertakings party to the agreement are not competitors, the 
exemption provided for in this Communiqu é shall apply on condition that the total 
market share of the parties does not exceed 40 % on the affected relevant 
technology and product market . 
 (4) In terms of  paragraphs 1 and 2, the market share on the relevant 
technology market is defined depending on the presence of the licensed technology 
on the relevant product market. The market share of the licensor on the relevant 
technology market shall be the total market share of the contract products produced 
by the licensor and the licensees on the relevan t product market.   8  Restrictions that render technology transfer agreements out of the scope 
of the block exemption  
 ARTICLE 6 – (1) Where a technology transfer agreement includes any of the 
restrictions laid down in this Article, the agreement shall not b enefit from the block 
exemption  as a whole.  
 (2) Where undertakings party to the agreement are compet itors, the exemption 
provided for in  this Communiqué shall not apply to the agreements which directly or 
indirectly, individually or in combination with ot her factors that are under the control of 
the parties have as their object:  
a) The restriction of a party’s right to determine its sales prices.  
b) The restriction of production and sales volumes of contract products.  
c) The allocation of markets and custo mers except the following cases:  
1) The obligation on the licensor and/or the licensee to or not to produce with 
the licensed technology on one or more technical fields of use or product 
markets or territories.  
2) The obligation on the licensor not to giv e a license to a third party and not to 
use the subj ect of the license on a particular  territory.  
3) The restriction of the active sales by the licensor and/or the licensee into the 
territory or the customer group reserved for the other party. However, the  
parties cannot be restricted directly or indirectly from making sales to third 
parties which are present in their territories and which make sales into the 
other territories or customer groups within the country.  
4) The restriction of active sales by the licensee into a territory or a customer 
group allocated by the licensor to another licensee. However, the parties 
cannot be restricted directly or indirectly from making sales to third parties 
which are present in their territories and which make sales int o the other 
territories or customer groups within the country.  
5) The obligation on the licensee to produce the contract products only for its 
own use. However the licensee shall not be restricted from actively or 
passively selling the contract products as  spare parts for its own products.   9 6) The obligation on the licensee to produce the contract products for a 
specific customer provided that the license is given in order to create an 
alternative source of supply for that customer.  
d) The restriction of a  licensee’s right to use its own technology or the restriction of a 
party’s right to carry out research and development activities unless such restriction 
is necessary in order to prevent the disclosure of the licensed know -how to third 
parties.  
 (3) Wher e undertakings party to the agreement are not competitors, the 
exemption provided for in  this Communiqué shall not apply to the agreements which 
directly or indirectly, individually or in combination with other factors that are under 
the control of the par ties have as their object:  
a) Restriction of a party’s right to determine its sales prices. On the other hand, it is 
possible to determine the maximum sales price or recommend a sales price provided 
that it does not develop into a fixed or minimum sales pr ice as a result of pressure or 
incentive from any of the parties.  
b) The restriction of the territory into which, or of the customers to whom, the licensee 
may passively sell the contract products, except the following cases:  
 1) The restriction of passiv e sales into an exclusive territory or to an exclusive 
customer group reserved for the licensor.  
2) The restriction of passive sales into an exclusive territory or to an exclusive 
custom er group allocated  to another licensee during the first two years that  
this other person  is selling the contract products in that territory or to that 
customer group .  
3) The obligation on the licensee to produce the contract products for only its 
own use. However,  the licensee shall not be restricted from actively or 
passiv ely selling the contract products as spare parts for its own products.    
4) The obligation on the licensee to produce the contract products for a 
particular customer provided that the license is given in order to create an 
alternative source of supply for that customer.  
5) The restriction of active sales to end users by a licensee carrying out 
activities at the wholesale level.   10 6) The restriction of sales by members of a selective distribution system to 
unauthorized distributors.  
c) Restriction of active o r passive sales to end users by a licensee carrying out 
activities at the retail level without prejudice to the right to prohibit a member of a 
selective distribution system from carrying out activities at an unauthorized place.  
 (4) Where undertakings pa rty to the agreement are not competitors at the time 
of the conclusion of the agreement but become competitors afterwards, paragraph 3 
and not paragraph 2 shall apply during the term of the agreement. However, in order 
for paragraph 3 to apply, the agreeme nt shall not be substantially amended.  
 Restrictions that cannot benefit from the block exemption  
 ARTICLE 7 – (1) Where a technology transfer agreement contains any of the 
restrictions laid down in this article and the related restriction is separable fr om the 
rest of the agreement, only that restriction shall not benefit from and the rest of the 
agreement shall continue to be covered by the block exemption. Where any of the 
restrictions laid down in this article cannot be separated from the rest of the 
agreement, the whole agreement shall not benefit from the block exemption.  
 (2) The exemption provided for in this Communiqué shall not apply to the 
following restrictions:  
a) Any direct or indirect obligation on the licensee to grant an exclusive license t o the 
licensor or a third party designated by the licensor in respect of its own severable 
improvements on or new applications of the licensed technology,  
b) Any direct or indirect obligation on the licensee to assign, partly or completely, to 
the licensor  or a third party designated by the licensor the rights related to its own 
severable improvements on or new applications of the licensed technology,  
c) The obligation on the licensee not to challenge the validity of the related 
intellectual property rights  that the licensor owns in Turkey. However, the right of the 
licensor to terminate the technology transfer agreement in case the licensee 
challenges the validity of one or more of the related licensed intellectual property 
rights is reserved.   11  (3) Where u ndertakings party to the agreement are not competitors the 
exemption provided for in this Communiqué shall not apply for any obligation which 
directly or indirectly:  
a) restricts the licensee’s right to use its own technology  
b) restricts research and deve lopment activities of any of the parties to the agreement 
unless it is necessary to prevent the disclosure of the licensed know -how to third 
parties.  
Withdrawal of the block exemption  
ARTICLE 8 – (1) The Competition Board may withdraw the exemption 
provide d for in this Communiqué, according to Article 13 of the Act No. 4054, in 
cases where the Board finds that a technology transfer agreement covered by the 
exemption provided for in this Communiqué has effects incompatible with Article 5 of 
the Act No. 4054 and especially that entry of third parties’ technologies to the market 
is restricted for instance because of the cumulative effects created by a network of 
agreements containing similar restrictions that prohibit licensees from using third 
parties’ technol ogies. The Competition Board shall request written or oral opinions 
from parties before giving its final decision on withdrawal of exemption.  
(2) Where parallel networks created by similar technology transfer agreements 
cover more than 50 % of the relevan t market, the Competition Board may, by a 
communiqué which it shall further issue, render agreements containing particular 
restrictions out of the scope the exemption provided for in this Communiqué. In this 
case, the concerned parties shall be given suffi cient time starting from the publication 
date of such communiqué to fulfill its demands before it enters into force.  
Application of the market share threshold  
ARTICLE 9 – (1) The market shares provided for in this Communiqué shall be 
calculated on the basi s of market sales value. If market sales value data are not 
available, estimates based on other reliable market data including market sales 
volumes may be used in order to calculate the market share of the undertaking 
concerned.  
(2) The market shares shal l be calculated on the basis of data of the year 
previous to that of evaluation.   12 (3) The market share belonging to the undertakings referred to in 
subparagraph (d) of Article 1(3) on definitions shall be equally portioned to the 
undertakings holding the ri ghts and powers listed in subparagraph (a).  
(4) If the market share is initially under the cover of the block exemption but 
subsequently passes the threshold provided for in this Communiqué, the exemption 
shall continue to apply until the end of the secon d year following the year in which the 
threshold is first exceeded.  
Application of the Communiqué to concerted practices and decisions of 
association of undertakings  
ARTICLE 10 – (1) The provisions of this Communiqué shall apply to concerted 
practices bet ween undertakings and decisions of association of undertakings to the 
extend that it is appropriate.   
Application of Article 6 of the Act  
ARTICLE 11 – (1) The exemption granted according to the provisions of this 
Communiqué is without prejudice to the appl ication of Article 6 of the Act No. 4054.  
Entry into Force  
ARTICLE 12 – (1) This Communiqué shall enter into force on the date it is 
published.  
Execution  
ARTICLE 13 – (1) The provisions of this Communiqué shall be executed by 
the President of the Competiti on Authority.