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The Turkish Competition Board's (the "Board") decision1 (the "Borusan decision") to reject the application, filed by Borusan Lojistik Dağıtım Depolama Taşımacılık ve Ticaret A.Ş. ("Borusan") under Article 11 of the Administrative Jurisdiction Procedures Law (İYUK), to amend the Board's earlier settlement decision2 (the "Settlement Decision") highlights the Turkish Competition Authority's (the "Authority") continued approach of classifying no-poaching agreements as cartels and treating them as hardcore restrictions of competition. This position aligns with the Board's previous decisions and global approaches to no-poaching agreements.
NO-POACHING AGREEMENTS
No-poaching agreements refer to arrangements, either direct or indirect, whereby one undertaking agrees not to make employment offers to, or not to hire, the employees of another undertaking. Such agreements may distort competition on labour markets by artificially suppressing or reducing the wages of workers who supply labour as a production input, or by preventing potential wage increases. They may also reduce employers' incentives to improve working and employment conditions, ultimately hindering innovation. Accordingly, no-poaching agreements between competitors, considering both their nature and effects, are regarded as hardcore restrictions of competition law.
THE PERSPECTIVE OF THE TURKISH COMPETITION AUTHORITY
In its 2019 Bfit decision,3 the Board recognised that no-poaching agreements can have anti-competitive effects similar to horizontal market-sharing arrangements, as they indirectly lead to wage stagnation by restricting employees' mobility and the ability to change jobs within the labour market.
In 2020, the Board reaffirmed this approach in a case4 concerning container transport undertakings, holding that no-poaching agreements are no different from cartels formed on the purchasing side of the market.
In February 2022, The Board imposed administrative fines on sixteen private hospitals for entering into no-poaching agreements that restricted competition on labour markets. This marked the first case5 in which the Board imposed sanctions against anti-competitive conduct in labour markets. The Board emphasised that no-poaching agreements are equivalent to cartels, thereby adopting a per se approach. Since then, it has actively investigated similar practices across various sectors.
In November 2024, the Authority finalised its Guidelines on Competition Infringements in Labour Markets, confirming that no-poaching agreements constitute "by object" restrictions of competition.
ANTITRUST GUIDELINES FOR BUSINESS ACTIVITIES AFFECTING WORKERS
On 16 January 2025, the U.S. Department of Justice (the "DOJ") and the Federal Trade Commission (the "FTC") issued new joint guidance on the application of antitrust laws to labour markets, replacing the prior 2016 guidance. The 2025 DOJ-FTC Guidance reflects the agencies' continued focus on anticompetitive practices affecting workers and provides expanded analysis of no-poach agreements, wage-fixing, non-competes and information sharing between employers. The 2025 DOJ-FTC Guidance bears many similarities to the Authority's Guidelines in several respects.
The Guidance reaffirms that certain types of agreements, including no-poach or wage-fixing agreements between competing employers, may violate U.S. antitrust laws and expose parties to criminal prosecution. These are agreements not to hire, solicit, or otherwise compete for current, former, or potential employees. Even absent criminal charges, such conduct may be subject to civil enforcement actions and liability.
A significant enforcement milestone was the DOJ's prosecution in U.S. v. Ryan Hee and VDA OC, LLC ("VDA"), filed in the District of Nevada in March 2021. In this case,6 VDA, a healthcare staffing company, and its regional manager were charged with conspiring with competitors to allocate nurses and fix their wages. VDA pleaded guilty to criminal antitrust charges in 2022, becoming the first company to be criminally convicted in a "no-poach" labour market case. The case confirmed that naked no-poach and wage-fixing agreements are treated as per se illegal under U.S. antitrust law and may be prosecuted criminally.
EU COMMISSION DECISION: DELIVERY HERO AND GLOVO
On 2 June 2025, the European Commission (the "Commission") fined Delivery Hero and Glovo7 a total of €329 million for participating in a cartel aimed at restricting competition in the online food delivery market across the European Economic Area.
Initially, as part of Delivery Hero's minority investment in Glovo in 2018, the companies agreed on a non-hiring clause covering certain employees. This later evolved into a broader no-poaching agreement under which both firms undertook not to actively approach each other's staff. Since Delivery Hero did not yet have sole control over Glovo, the Commission considered this conduct a violation of competition law until Delivery Hero acquired full control in 2022.
This represents the Commission's first-ever cartel decision concerning labour market restrictions, as well as the first sanction involving anticompetitive conduct arising from minority shareholdings. It underscores that no-poaching and wage-fixing agreements are taken as seriously as traditional cartels.
ASSESSMENT OF THE BORUSAN DECISION
In its Borusan decision, the Board identified the core competition concern as reciprocal no-poaching agreements concluded between competing undertakings. Despite Borusan's objections, the Board classified this conduct as a cartel, determining that such practices constitute "hardcore restrictions" and are therefore excluded from the commitment mechanism under Article 4(1) of Communiqué No. 2021/2 on Commitments.
Borusan also requested that the annual gross revenue forming the basis of the administrative fine in the Settlement Decision be calculated using the personnel expenses-to-total costs ratio, as set out in the Board's decision dated 26 July 2023 and numbered 23-34/649-218, and that revenues from port activities outside the scope of the violation be excluded. Referring to Article 43(8) of Law No 4054 on the Protection of Competition, the Board rejected this request, noting that both the fine and its calculation method had been accepted as is in the settlement text and cannot be contested once the settlement is finalised.
Indeed, pursuant to Article 43(8) of Law No 4054, undertakings are currently legally barred from appealing to a higher authority regarding a matter on which they have reached a settlement. Although the Turkish Constitutional Court decided at its Plenary Session on 10 September 2025 to review on the merits the annulment request filed by the Ankara 9th Administrative Court concerning Article 43(8), no final decision has yet been rendered, and the process is being closely monitored.
CONCLUSION
In conclusion, the Board's approach in the Borusan decision is consistent with its previous practice and with global antitrust standards, categorising no-poaching agreements as hardcore restrictions of competition and treating them as cartels. The Board also reaffirmed that, once finalised, settlement terms cannot be contested. On the other hand, a possible annulment by the Turkish Constitutional Court of Article 43(8) could prompt a change in the Board's approach to the settlement mechanism in the future.
Footnotes
1. Decision dated 24.01.2024 and numbered 24-06/98-41.
2. Decision dated 30.03.2023 and numbered 23-16/287-100.
3. Decision dated 07.02.2019 and numbered 19-06/64-27.
4. Decision dated 02.01.2020 and numbered 20-01/3-2.
5. Decision dated 24.02.2022 and numbered 22-10/152-62.
6. https://www.justice.gov/atr/case/us-v-ryan-hee-and-vda-oc-llc-formerly-advantage-call-llc
7. https://competition-cases.ec.europa.eu/cases/AT.40795
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